author: PER CURIAM. PAUL E. DANIELSON, Justice,

text:
    2009 Ark. 391
    ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION, Petitioner, v. L.T. SIMES, Respondent.
    No. 09-443.
    Supreme Court of Arkansas.
    June 25, 2009.
    David A. Stewart, Exec. Dir., and David J. Sachar, Dep. Exec. Dir., Arkansas Judicial Discipline & Disability Commission, for petitioner.
    George E. Hairston and Terrence Cain, Little Rock, for respondent.
   PER CURIAM.

| iPetitioner Arkansas Judicial Discipline and Disability Commission (the Commission) has filed with this court its final decision, findings, and recommendations, pursuant to Arkansas Judicial Discipline and Disability Commission Rule 12(A) (2009), in which it recommends that this court remove respondent L.T. Simes from the office of Circuit Judge of the First Judicial District, Division 1, of the State of Arkansas. The Commission found that Judge Simes violated Canons 2, 4E, and 4G of the Arkansas Code of Judicial Conduct and further found that the violations were willful and prejudicial to the administration of justice pursuant to Arkansas Code Annotated § 16-10-410(b)(4)-(5) (Supp.2001). Because the Commission failed to file the “entire record” and because the Commission’s brief is |2deficient, we remand this matter to the Commission to supplement the record, and we order rebriefing.

Rule 12(E) of the Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission specifically directs this court to “file a written opinion and judgment directing such disciplinary action as it finds just and proper,” “[bjased upon a review of the entire record,” Ark. Jud. Disc. & Disab. Comm’n R. 12(E) (2009) (emphasis added). However, the Commission, in this case, has filed a record, which merely contains the following: (1) its letter regarding the final report of the Commission following the disciplinary hearing; (2) the transcript of the Commission’s final hearing; (8) the Commission’s final decision, findings, and recommendations; (4) the three-member panel’s report and recommendations; (5) the transcripts of the two-day disciplinary hearings before the three-member panel; and (6) the exhibits that were introduced at the disciplinary hearing by both the Commission and Judge Simes.

The 2006 Procedures clearly set forth that there should exist in this case, at a minimum, an initial complaint, notice, a sworn complaint or statement of allegations, notice of the sworn complaint or statement of allegations, the judge’s answer or his recorded personal statement in ■ lieu thereof, any amendments to the statement of allegations, the transcript of the probable cause hearing, the findings and report of the probable cause hearing, any formal statement of charges, and any documentation relied on for probable Rcause, all of which should be included in an “entire record.” But in addition, Judge Simes raised due-process concerns before the Commission and before this court. Therefore, the “entire record” should also include any and all complaints received by the Commission, at any time, with regard to Judge Simes and his involvement in the Chandler Estate. To be clear, the Commission’s “entire record” shall include any and all pleadings, documents, or evidence required by the 2006 Procedures to be filed and/or relevant to the essential issues to be considered by this court. We, therefore, order the Commission to file the “entire record” no later than July 27, 2009, and direct the Commission to certify to this court that it has filed the “entire record.”

It is further evident to this court that the Commission’s brief is deficient. Rule 12(C) of the Procedures requires that simultaneous briefs be filed by the parties “in accordance with court rules.” Ark. Jud. Disc. & Disab. R. 12(C). In Judicial Discipline & Disability Commission v. Simes, 2009 Ark. 296, 308 S.W.3d 613 (per curiam), this court deemed the Commission the petitioner in this matter. Therefore, as the petitioner, the Commission was charged with the duty of providing this court with an abstract and an addendum in accordance with our rules.

14While the Commission did abstract the two days of the disciplinary hearing, it failed to include in its table of contents “references to the abstract listing the name of each witness with the page number at which the testimony begins.” Ark. Sup.Ct. R. 4-2(a)(l) (2009). More importantly, however, the Commission failed to provide any addendum as it was required to do. Accordingly, we order the matter rebriefed. The parties shall submit simultaneous substituted briefs no later than August 17, 2009, and simultaneous reply briefs no later than August 31, 2009. The Commission’s substituted brief should contain a complete addendum, in accordance with Ark. Sup.Ct. R. 4 — 2(a)(8), based upon the “entire record.”

Remanded to supplement the record; rebriefing ordered.

Special Justice RON SHEFFIELD joins.

DANIELSON, J., dissents.

WILLS, J., not participating.

PAUL E. DANIELSON, Justice,

dissenting.

Because it is my opinion that we have before us the “entire record,” I dissent from this court’s remand of this matter to the Commission. The record before us consists of the exhibits and testimony presented to the three-member panel, and, subsequently, the Commission; we, therefore, have the “entire record” upon | swhich we can base our review and “file a written opinion and judgment directing such disciplinary action as [we] find[ ] just and proper.” Ark. Jud. Disc. & Disab. Comm’n R. 12(E). In addition, Judge Simes moved this court to supplement the record with other items that he thought were relevant to our determination, and we granted his motion. As neither party suggests that we do not have the “entire record,” and because it is clear that we have that information upon which the parties made their arguments and upon which the panel and Commission based their findings and recommendation, there is no need for remand in this case, and I respectfully dissent.

      . This list is by no means exhaustive.

      . The testimony and evidence contained in the instant record make reference to the fact that the Commission may have been investigating Judge Simes's involvement in the Chandler Estate as early as 2004 and 2005. Judge Simes claims, and the instant record reflects, that the first notice he received regarding the Commission’s investigation into this matter was in 2006.

      . Judge Simes did provide this court with an addendum; however, that was not his responsibility under our rules.


source: Caselaw Access Project

author: Justice ABRAMSON.

license: Public Domain

text:
    Robert LADRIERE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000758-MR.
    Supreme Court of Kentucky.
    Oct. 21, 2010.

      Kathleen Kallaher Schmidt, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, James C. Shackelford, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice ABRAMSON.

Appellant, Robert Ladriere, appeals from a Judgment of the Campbell Circuit Court, entered upon a guilty plea to one count of kidnapping. Ladriere agreed to the maximum sentence of twenty years in exchange for the dismissal of a second-degree persistent felony offender count. In addition to twenty years imprisonment, the judgment imposed a five-year conditional discharge period and accompanying conditions following expiration of Ladri-ere’s sentence as well as other restrictions relative to his duty to register in the sex offender registration database. Although Ladriere entered an unconditional guilty plea, he now challenges the additional restrictions and requirements imposed by the judgment, including the five-year conditional discharge period. Ladriere also challenges the imposition of court costs, given his indigent status. Because this five-year period along with some of the other restrictions included in Ladriere’s sentence are, indeed, contrary to law, we must vacate his sentence despite his unconditional guilty plea. The provision ordering Ladriere to pay court costs must also be vacated.

RELEVANT FACTS

The events giving rise to the charges herein occurred on April 10, 2009. As recounted in the indictment, Ladriere was in a bathroom stall in the women’s restroom of the county library. When the victim, a ten-year old girl, entered the adjoining stall, Ladriere put his hand on the ground, looked under the stall and watched her use the bathroom. Before she could exit the stall, he entered and backed her up against the wall. When the victim screamed, Ladriere put his finger to his mouth, signifying for her to be quiet. However, he fled the bathroom as the victim was about to scream again.

Ladriere was charged with kidnapping pursuant to KRS 509.040 and as a persistent felony offender in the second degree (PF02). Ladriere entered an unconditional guilty plea to kidnapping despite the plea agreement’s inclusion of a twenty-year sentencing recommendation, the maximum sentence for the Class B kidnapping felony. In exchange, however, the PF02 count was dismissed.

During the hearing on Ladriere’s guilty plea, there was some confusion concerning his classification and relative duties with regard to the sex offender registration laws. The prosecutor stated her belief that the kidnapping conviction would subject Ladriere to registration and defense counsel countered that he was unaware of such a requirement. However, in response to the trial court’s offer of additional time to look into the matter, Ladriere himself conceded that he was aware that he would be subject to registration. The trial court then accepted Ladriere’s guilty plea and set the matter for final sentencing.

At the sentencing hearing, the trial court imposed the agreed-upon twenty-year sentence. Additionally, the trial court confirmed that Ladriere would be subject to lifetime registration under the sex offender registration laws. Acknowledging that kidnapping was not a sex offense per se, the trial court explained that additional restrictions arose out of Ladri-ere’s duty to register. Specifically, the trial court imposed a five-year conditional discharge period upon expiration of his sentence, ordered him to complete the Sex Offender Treatment Program (SOTP) and ordered him to submit to HIV testing. Further conditions included the statutory residential restriction; that Ladriere have no unauthorized contact with minors; that Ladriere not possess sexually arousing materials or use photographic or computer equipment; that Ladriere not establish a romantic relationship without the permission of his probation officer or treatment provider; and that Ladriere not gain employment that may be used to attract or acquire new victims. Finally, the judgment imposed court costs upon Ladriere and directed that he pay $125.00 to the public defender.

On appeal to this Court, Ladriere asserts that the trial court’s imposition of the five-year conditional discharge period and accompanying conditions was contrary to law and must be vacated accordingly. He further challenges the imposition of court costs.

ANALYSIS

I. Ladriere’s Claim That an Illegal Sentence was Imposed Upon Him Falls Within the Limited Purview of Reviewable Unpreserved Errors Despite His Unconditional Guilty Plea.

We first address the effect of Ladriere’s failure to preserve any issue for our review. Ladriere entered an unconditional guilty plea to kidnapping, the effect of which is to vastly “reduce the scope of potentially appealable issues.” Windsor v. Commonwealth, 250 S.W.3d 306, 307 (Ky.2008) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)). Nevertheless, sentencing can be one of the few issues not waived by an unconditional plea, where it is alleged that the sentence was not authorized, contrary to statute, or otherwise manifestly infirm. Windsor, 250 S.W.3d 306; Ware v. Commonwealth, 34 S.W.3d 383 (Ky.App.2000); Hughes v. Commonwealth, 875 S.W.2d 99 (Ky.1994). As Ladriere’s claim of error does, indeed, fall within the purview of the limited class of errors that survive an unconditional guilty plea and can be subject to appellate review, we proceed to address the lawfulness of his sentence.

Nevertheless, the lack of preservation of Ladriere’s claims of error renders our review one for palpable error only. RCr 10.26. Under this standard, reversal is warranted “if a manifest injustice has resulted from the error,” which requires a showing of the “probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006). If, indeed, the judgment imposes an illegal sentence upon Ladriere, it is axiomatic that the result would have been different but for the error.

II. While the Final Judgment Appropriately Subjected Ladriere to Lifetime Registration and Accompanying Residency Requirements, Imposition of the Felony Conditional Discharge Period and Accompanying Conditions as well as Orders to Submit to HIV Testing and to Complete SOTP Were Not Authorized By Statute.

As stated above, Ladriere pled guilty to kidnapping under KRS 509.040. As explained in the indictment, the victim of the offense was a minor. KRS 17.510 establishes a registration system for sexual offenders and for those who have committed crimes against minors. A “sexual offender” is a person who is convicted of or pleads guilty to a “sex crime,” as defined in KRS 17.500(8). Kidnapping, even where the victim is a minor, does not fall within the statutory definition of a “sex crime.” However, kidnapping under KRS 509.040 is explicitly included in the definition of a “criminal offense against a victim who is a minor,” if the victim is under the age of eighteen. KRS 17.500(3)(a)(i). Because the definition of “registrant” in KRS 17.500(5) includes not only sexual offenders but also “[a]ny person eighteen (18) years of age or older at the time of the offense ... who has committed ... [a] criminal offense against a victim who is a minor,” Ladriere is clearly a “registrant.” In fact, Ladriere is subject to lifetime registration for this offense pursuant to KRS 17.520(2)(a)(l). And, because KRS 17.545 places residential restrictions on all “registrants,” there is no error in that portion of the trial court’s order imposing the statutory residency restrictions on La-driere.

Ladriere’s contention that he should not have to register “as a sexual offender” is baseless. He asserts an unfair prejudice in having to reveal to potential employers, landlords, and others, his status as a “sexual offender registrant” as opposed to a mere “registrant” even though he did not commit a sexual offense as defined by the relevant statute. He argues that to the extent the Department of Corrections forces all registrants to be called sex offenders, it is an incorrect statement of the offender’s legal status if, instead, the offender has committed a crime against a victim who is a minor. As the Commonwealth points out, there is absolutely nothing in the record to support that the Department of Corrections does force all registrants to be called sex offenders. Regardless, the Justice and Public Safety Cabinet is charged with the development and implementation of the registration system, KRS 17.510, and the General Assembly has legislated the inclusion of offenders such as Ladriere who commit “a criminal offense against a victim who is a minor.” KRS 17.500(5).

Additionally, Ladriere contends that the statutory period of conditional discharge and accompanying conditions imposed by the trial court are only authorized for those who are required to register by virtue of their status as a “sexual offender” as opposed to those who are required to register because they committed a criminal offense against a minor. KRS 532.043 mandates that a five-year conditional discharge period be imposed upon certain offenders; namely, those convicted of or pleading guilty to “a felony offense under KRS Chapter 510, 529.100 involving commercial sexual activity, 530.020, 530.064(i )(a), 531.310, or 531.320.” These offenses encompass all of the violations that constitute a “sex crime” under KRS 17.500(8) but also include one other — a felony offense under KRS 529.100 involving commercial sexual activity. Significantly, a “criminal offense against a victim who is a minor” is not mentioned in KRS 532.043, nor is an offense under KRS 509.040 included in the statute. Accordingly, Ladri-ere is correct that KRS 532.043 does not authorize a conditional discharge period to be imposed in his case.

KRS 17.520 provides that the commission of certain offenses subjects the offender to registration requirements for a period of twenty years while other offenses subject the offender to lifetime registration. Ladriere’s offense explicitly subjects him to lifetime registration, indicating that the legislature considered this offense to be of an even more serious nature than certain sex offenses, at least with respect to the necessity of registration. Accordingly, it seems counterintuitive that an offense requiring a longer registration period would be excluded from the statutory conditional discharge period and accompanying conditions that accompany some sex offenses even though these offenses also entail a shorter registration period. Nevertheless, “where the language of a statute is clear and unambiguous on its face, we are not free to construe it otherwise even though such construction might be more in keeping with the statute’s apparent purpose.” MPM Financial Group, Inc. v. Morton, 289 S.W.3d 193, 197 (Ky.2009) (citing Whittaker v. McClure, 891 S.W.2d 80, 83 (Ky.1995)). KRS 532.043 specifically enumerates the offenses that warrant imposition of the conditional discharge period and, as noted, Ladriere’s offense is not among them.

For the same reasons, ordering La-driere to complete a Sex Offender Treatment Program (SOTP) was not statutorily authorized. SOTP is a treatment program for sexual offenders. Participation in the program may be ordered when the sentencing court, department officials, or both determine that a sexual offender may have a mental, emotional, or behavioral disorder and is likely to benefit from the program. KRS 197.010(4). However, “sexual offender” as used in KRS Chapter 197 is a person who has committed a “sex crime” as defined by KRS 17.500. KRS 197.410(1). Given that Ladriere did not commit an offense within the purview of the statute’s definition of “sex crime,” it stands to reason that he is not a “sexual offender” for purposes of the SOTP provisions either.

As to the non-statutory conditions imposed upon Ladriere, such as the no-contact with minors order, prohibition on possession of sexually arousing materials, employment restrictions and restrictions on establishing romantic relationships, these were imposed as conditions of the “conditional discharge” period. Having determined that Ladriere was not subject to a period of conditional discharge, the conditions established relative to that period must fall as well.

Finally, the trial court ordered La-driere to be tested for HIV pursuant to KRS 510.320. However, the statute mandates that the sentencing court order HIV testing when the offender was convicted of certain offenses under KRS Chapter 510 that involve sexual intercourse, deviate sexual intercourse or sexual contact. La-driere’s offense does not fell within Chapter 510 and, therefore, is not encompassed by the statute concerning HIV testing. Again, the trial court’s order in this regard is contrary to the statute and must be vacated.

III. The Trial Court Erred in Imposing Court Costs on Ladriere Given His Indigent Status.

Ladriere also asserts error in the imposition of court costs upon him despite his indigent status, an issue preserved by contemporaneous objection. The Commonwealth responds that although the trial court imposed court costs in its oral ruling, it was not memorialized in the written judgment, rendering the issue moot. Although the oral ruling must be consulted to discern that the “cost of the action,” is $150.00, the written judgment does direct Ladriere to “pay the sum of $125.00 to the public advocates for their services herein and the cost of this action, same to be payable at the minimum rate of $50 per month commencing 30 days after release from custody.” Accordingly, we proceed to the merits of Ladriere’s claim. Because court costs must be waived for indigent defendants pursuant to KRS 31.110(l)(b), the provision in the judgment imposing court costs must be vacated. Edmonson v. Commonwealth, 725 S.W.2d 595 (Ky.1987). The Commonwealth correctly points out that the $125.00 public defender fee is explicitly authorized by KRS 31.211(1), but Ladriere’s challenge is to the imposition of court costs, not the public defender fee.

CONCLUSION

While the judgment of the trial court appropriately ordered Ladriere to lifetime registration in the registration system for adults who have committed sex crimes or crimes against minors and appropriately imposed the accompanying residency restrictions, that portion of the judgment that imposes a five-year conditional discharge period and accompanying conditions as well as the provisions ordering Ladriere to complete SOTP and submit to HIV testing must be vacated as they are not authorized by statute. The provision directing Ladriere to pay court costs must also be vacated due to his indigent status. Accordingly, the trial court’s judgment is vacated and this cause is remanded for entry of a final judgment consistent with this opinion.

MINTON, C.J.; CUNNINGHAM, NOBLE, SCOTT, and VENTERS, JJ., concur.

SCHRODER, J., not sitting.

      . KRS 17.545 prohibits registrants from residing within 1000 yards of schools, playgrounds and licensed day care facilities.


author: Justice NOBLE. MINTON, C.J., CUNNINGHAM, J.,

text:
    Jerry WOOLUM, M.D., Individually; Woolum & Combs-Woolum, P.S.C., Appellants, v. Lisa Ann HILLMAN, as Administratrix of the Estate of Caitlynn Hillman, Deceased; Lisa Ann Hillman, as Surviving Parent of Caitlynn Hillman, Deceased; Aaron Hillman, as Surviving Parent of Caitlynn Hillman, Deceased, Appellees.
    No. 2008-SC-000396-DG.
    Supreme Court of Kentucky.
    Oct. 21, 2010.

      Richard Paul Schiller, Jr., Kimberley S. Naber, Schiller, Osbourn, Barnes & Malo-ney, Gerald R. Toner, Katherine K. Vesely, O’Bryan, Brown & Toner, PLLC, Louisville, KY, for appellants.
    Stephen M. O’Brien, III, Bruce Clark Batten, II, Garmer & O’Brien, LLP, Lexington, KY, for appellees.
   Opinion of the Court by

Justice NOBLE.

Appellees, Lisa Ann and Aaron Hillman, received a judgment in Bell Circuit Court in their wrongful death action for the death of their stillborn child against Appellant Dr. Jerry Woolum and his medical practice. Appellant challenges the judgment on four grounds: two evidentiary admissions, the denial of a directed verdict, and juror misconduct. This Court finds no reversible error, and the judgment is affirmed.

I. Background

In this wrongful death action over a stillborn fetus, Appellees alleged medical malpractice against Appellant for his treatment of the pregnancy after the mother, Lisa Hillman, was diagnosed with pregnancy-induced hypertension (also known as preeclampsia).

As of July 11, 2002, everything appeared normal with the pregnancy, according to an ultrasound performed on that date. At that time, Appellant set the due date as September 16.

When Lisa Hillman attended her regularly scheduled appointment on August 7, 2002, she learned she had a heightened blood pressure reading of 140/100. Appellant diagnosed Hillman’s condition as pregnancy-induced hypertension. He informed her that her condition was dangerous and could lead to toxemia and seizures, and instructed her to stay on bed rest and visit him biweekly or immediately if she noticed any problems. Nonetheless, Appellant decided not to advance the due date to before 37 weeks.

Over the next few weeks, Hillman’s condition worsened. Eventually, Appellant and Hillman agreed to deliver the child on September 3, almost two weeks sooner than the original due date. During the night of September 2, before the scheduled appointment, Hillman went into labor. However, after she checked into the hospital, nurses could not find a heartbeat from the child. The child was then delivered stillborn. Appellant did not recommend an autopsy, but he concluded that the child had been dead for at least 24 hours. He told the Appellees at that time that the cause of death was Hillman’s preeclampsia, although at trial he offered an alternative theory of a genetic disorder.

Appellees filed their wrongful death action against Appellant in Bell Circuit Court. Their theory of the case was that Appellant committed medical malpractice by postponing delivery after Hillman had been diagnosed with pregnancy-induced hypertension. Appellant countered that the cause of death was a genetic disease, trophoblasts, which affected the placenta and which was untreatable by Appellant.

In a 9-3 verdict, the Bell County jury found for Appellees, awarding them $500,600 in damages. A new trial was then ordered on a matter unrelated to this appeal. However, after the parties reached a settlement on that matter, the court entered a final judgment, which was subsequently appealed.

The Court of Appeals affirmed on all issues implicating liability: two claims of evidentiary error, Appellant’s motion for a directed verdict, and his claim of juror misconduct. This Court granted further review on those issues.

II. Analysis

Appellant raises four issues in his appeal. His primary argument is that testimony about a defense witness’s commonality of insurance with the defendant (Appellant) was impermissibly admitted at trial. He also argues that the trial court erred in permitting an ultrasound of the fetus to be played for the jury unaccompanied by expert explanation. Appellant also claims he was entitled to a directed verdict due to insufficient evidence that the fetus was viable in the first place. Finally he alleges juror misconduct arising from two jurors being taken to the hospital in the midst of the trial.

A. Commonality of Insurance

Appellant filed a pretrial motion in limine to exclude evidence that Appellant and his expert witness, Dr. Butcher, shared a malpractice insurance carrier. Appellees sought to admit the evidence to demonstrate the expert witness’s bias in favor of Appellant. Appellees argued that Dr. Butcher was biased by their commonality of insurance because he believed that a judgment against his insurance company could adversely affect his own premiums.

In making this claim, Appellees relied on Dr. Butcher’s deposition testimony. When previously deposed, Dr. Butcher had described how several malpractice claims against his former liability insurer had driven up his premiums and eventually drove the insurer into bankruptcy, effectively forcing him out of practice in Mississippi. Regarding his new practice in Kentucky, he had stated that doctors were now leaving the Commonwealth because of malpractice claims resulting in increased premiums.

After an extensive hearing, the court denied the motion in limine. The morning before the expert was to testify, the court returned to the matter and again denied the motion in limine and then permitted evidence of the common insurance coverage to be introduced at trial.

It is well-recognized that evidence of a defendant’s insurance is inadmissible to imply liability. As provided in KRE 411, “Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Under this rule, a doctor’s malpractice insurance may not be introduced to suggest that, because he would not bear the burden of any damage to a patient, he was more likely to be negligent in his treatment. The rule is not, however, a complete bar on evidence of liability insurance. The remainder of KRE 411 explicitly instructs, “This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.” (Emphasis added.)

Evidence of commonality of insurance was thus clearly not barred by KRE 411 when offered to prove a witness’s bias. That was the purpose for which it was offered and that is the purpose for which the trial court allowed it. While the weight of such evidence is debatable, and is indeed case-specific as will be discussed below, it must certainly pass the relaxed test for relevance under KRE 401. A juror might reasonably find it more likely that the expert would be biased in favor of Appellant having the same insurance coverage than if they did not. See KRE 401.

Yet this does not end the inquiry as to admissibility of such evidence. “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice. ...” KRE 403. The very existence of KRE 411 demonstrates a concern that proof of a defendant’s liability insurance inherently creates the danger of undue prejudice. There is always the danger that a jury will show less sympathy to an insured defendant, inappropriately resulting in a verdict for the plaintiff. The question presented in this case is whether that danger in admitting Appellant’s and his expert’s shared insurance coverage substantially outweighed its probative value.

The only bright-line solution to this problem has been developed by the Supreme Court of Ohio, which employs versions of Rules 403 and 411 identical to Kentucky’s. That court has conclusively held that “in a medical malpractice action, evidence of a commonality of insurance interests between a defendant and an expert witness is sufficiently probative of the expert’s bias as to clearly outweigh any potential prejudice evidence of insurance might cause.” Ede v. Atrium S. OB-GYN, 71 Ohio St.3d 124, 642 N.E.2d 365, 368 (1994); see also Davis v. Immediate Medical Servs., 80 Ohio St.3d 10, 684 N.E.2d 292, 297 (1997). The Ohio Supreme Court drew from the general truth-seeking nature of the rules of evidence, along with the specific exception for bias under Rule 411, in creating its bright-line rule favoring the inclusion of such evidence. See Ede, 642 N.E.2d at 368.

Ohio’s formation of a bright-line rule rests on two vital principles: the general inclusionary thrust of the Rules of Evidence and the preference for allowing evidence for bias. These are core principles of Kentucky’s evidence law also. See Baker v. Kammerer, 187 S.W.3d 292, 296 (Ky.2006) (noting significance of “the general inclusionary thrust of the Rules of Evidence and the more particular preference to allow evidence of bias”). Nevertheless, this Court finds a bright line rule on admissibility of common insurance to be incompatible with KRE 403.

Ohio’s approach disregards the role of judicial discretion under Rule 403, which is the same in both Ohio and Kentucky. The dissent in Ede noted this and correctly emphasized the role of judicial discretion in balancing probative value against prejudicial effect:

In applying Evid.R. 403, a trial court must have broad discretion because of the practical problems inherent in the balancing of tangible and indefinable factors, such as unfair prejudice and probative value. The task of assessing potential prejudice is one for which a trial judge, in light of his familiarity with all the evidence in a particular case, is well suited. Unlike reviewing judges who must look at a cold record, a trial judge is in a superior position to evaluate the impact of the evidence because he sees the mannerisms and reactions of the jurors, witnesses, parties, and attorneys.

Ede, 642 N.E.2d at 370 (Wright, J., dissenting).

The Ede dissent echoes this Court’s own implementation of judicial discretion in a similar insurance-bias case, Baker v. Kammerer. In Baker, the plaintiff attempted to reveal a defense witness’s employment with the defendant’s insurance company. This Court “recognize[d] the trial court’s inherent discretion over evidentiary questions such as this one,” 187 S.W.3d at 296, and then stated:

Because a multitude of factors may be considered by a trial judge addressing such an issue, judges are free to consider a spectrum of potential remedies. In an appropriate case, a judge might reasonably conclude that insurance evidence should be freely admitted. Another judge might choose a middle ground, allowing the identification of a witness as an agent of the defendant, but refusing to allow the disclosure that a defendant is insured. Likewise, applying the balancing test of KRE 403 might lead to the conclusion that certain insurance evidence is inadmissible.

Id. We concluded by rejecting a “rigid, per se exclusion of any evidence of insurance” in favor of “the flexible, case-by-case approach required by KRE 403.” Id. at 297.

Appellant principally bases his argument on the Court of Appeals’ decision in Wallace v. Leedhanachoke, 949 S.W.2d 624 (Ky.App.1996). In Wallace, the expert and the defendant shared an insurance company, but the plaintiff could not supply the trial court with any hint of bias stemming from that relationship. Id. at 625-26. The trial court excluded evidence of the shared insurance because any bias inherent therein was too remote and speculative to outweigh its prejudicial effect. Id. at 628. The court stated it was “not prepared to adopt a per se rule either permitting or prohibiting this line of cross-examination,” and affirmed the trial court’s exercise of discretion. Id.

Appellant urges this Court to adopt and directly apply Wallace to hold that evidence of insurance should have been excluded in this case as well. While willing to adopt the well-reasoned analysis in Wallace, this Court disagrees with Appellant that its disposition controls the outcome here. Although the facts of both cases are indeed similar, Wallace does not provide a per se rule that evidence of shared insurance should be excluded. See id. On the contrary, it vests the trial judge with broad discretion to evaluate the proof of bias on a case-by-case basis. See id.

When the trial court in this case addressed the matter a second time, the morning before the evidence was introduced, it listed several factors that swayed it toward admitting the commonality of insurance evidence. Those factors, paraphrased, were as follows:

(1)Dr. Butcher unequivocally stated in his deposition that he is of the belief and opinion that malpractice cases result in, and have a direct link to, rate increases;
(2) Dr. Butcher left one state because he believed there was collusion between judges and lawyers in malpractice cases;
(3) Dr. Butcher’s comments were so severe during his deposition that defense counsel felt the need to rein him in and caution him;
(4) Dr. Butcher has established a general hostility to medical negligence cases;
(5) Dr. Woolum and Dr. Butcher have more than simply the casual connection of having the same insurance company, as they had worked side by side for twenty years in the same community hospital.

In factoring these considerations into its estimation of probative value, the trial court properly exercised its discretion under KRE 403. Admittedly, as Appellant contends, these factors indicate bias on their own, isolated from the issue of common insurance. Notwithstanding this independent impeachment value, these factors also develop a link between the shared insurance and Dr. Butcher’s bias against this malpractice claim. They demonstrate that Dr. Butcher is no average, passive policyholder, but instead a practitioner very concerned with the affairs of his insurer. See Wallace, 949 S.W.2d at 626 (recognizing distinction between mere policyholder and someone actively interested in his insurer’s affairs).

Based on these factors, the court made the following finding about Dr. Butcher upon first considering the issue:

I wish it could be avoided, but I think they can get in under the bias exception. If they’re both insured — I mean he’s clearly got a perceived financial stake in the outcome of this trial if they’re insured by the [same insurance company] — based on his testimony in his deposition. He obviously believes that lawsuits are the — are what are pushing his premiums up. It’s obvious perceived bias.

When the court returned to the matter during trial and reiterated its ruling, it stated:

He’s indicated a strong belief that — and I think that should be the focus of the review, not — not the actual statistical analysis of what malpractice verdicts do to rates, but what the witness believes in his mind. I think that’s the key here. The fact .that he believes there is a direct link.

?The court’s finding that Dr. Butcher had perceived bias is reviewed only for clear error. CR 52.01; Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky.2004). From the factors duly considered, this Court cannot deduce clear error in the lower court’s determination.

“As noted above, dual concerns — the general inclusionary thrust of the Rules of Evidence and the more particular preference to allow evidence of bias — weigh heavily in favor of admissibility.” Baker, 187 S.W.3d at 294. A situation such as Wallace, where there is absolutely no evidence linking common insurance to witness bias, is the exception, not the rule. See id. at 296. “Absent unusual circumstances wherein the evidence would be ... minimally probative, the principal question is the scope of the evidence of bias to be allowed,” not its “initial admissibility.” Id. In this case, the scope of such evidence consisted of only two questions. The trial court appropriately exercised its discretion by including this evidence of bias.

It is important to note that Dr. Butcher’s trial testimony about his insurance carrier and his belief in the effect of the litigation on his premiums is immaterial to the analysis of whether such questioning should have been permitted. The questioning proceeded as follows: •

Q: Now, you and Dr. Woolum share the same insurance carrier, correct?
A. He has the same one that I have.
Q: And what happens in this case to Dr. Woolum you believe will have some impact or may have some impact on your insurance premium, don’t you, sir?
A: No. With his denial of any impact, all questioning about their common insurance ceased.

That Dr. Butcher actually testified that this malpractice claim would not impact his insurance premiums cannot retroactively control the trial court’s KRE 403 balancing, which was done in response to a motion in limine resolved prior to trial and based on deposition testimony. If the trial court had been presented at the hearing on the motion in limine with evidence that Dr. Butcher did not think this litigation would impact his insurance premiums— e.g., in his deposition testimony — it would have weighed heavily in favor of excluding the commonality of insurance. Even then, the trial court would not have been bound by Dr. Butcher’s claim and could consider his other testimony that evidenced bias.

As a result of the strong connection between common insurance and witness bias, it was not an abuse of discretion to admit the evidence.

B. Ultrasound

A second motion in limine by Appellant sought to exclude an ultrasound of the fetus during pregnancy. The motion was denied and, when Lisa Hillman took the stand, a video of the ultrasound was played for the jury. Appellant contends the ultrasound was not properly authenticated by Hillman and also that it unduly prejudiced Appellant by its presentation.

Appellant never challenged the authenticity of the ultrasound at trial. His motion in limine instead focused purely on the relevance and prejudice of the ultrasound. When Appellees attempted to introduce the ultrasound at trial, Appellant simply “renewed” his objection to its probative value. Thus, the issue of authentication was not properly raised and is unpre-served for Appellate review. Consequently, Appellant cannot now claim that Hill-man was an improper witness through whom to authenticate and introduce the ultrasound.

Turning to Appellant’s second contention, it is essentially an argument under KRE 403: he asserts the ultrasound had minimal probative value and whatever value it did have was substantially outweighed by its prejudicial effect. This contention was properly preserved through Appellant’s motion in limine.

Appellant is correct that the ultrasound carries minimal probative weight. The only relevant fact the ultrasound tends to show is that the fetus was living at the time the ultrasound was performed. (Even this observation may not be obvious to a juror unfamiliar with ultrasounds.) Although the ultrasound may tend to prove the fetus was then alive, this does not impute great probative value, as that fact was not disputed at trial. Furthermore, to the extent that the ultrasound demonstrates life in the fetus, that proof is simply redundant to the ultrasound report, which was admitted for the same purpose.

Despite the minimal probative value, this Court cannot say it was an abuse of discretion to admit the ultrasound in light of its similarly minimal countervailing prejudicial effect. As Appellant described the video of the ultrasound in his original motion in limine, it “shows nothing other than a purely objective and scientific procedure already documented by the ultrasound report.” (Emphasis added.)

Appellant’s assertion of the unfair prejudice deriving from the ultrasound is as follows: “[B]y showing the jury this video of an approximately seven-month-old fetus, the jury was left with the impression that in one moment everything was O.K. with the mother and baby, and then all of a sudden, everything was not O.K.” (Emphasis in original.)

This Court finds both of Appellant’s fears assumed in this statement to be misguided. First, as Appellant himself admits, “Due to the jury’s lack of knowledge of ultrasound imaging, the video had no tendency to make the existence of any consequential [and disputed] fact (e.g., the health of the fetus and whether or not it had a genetic defect) more or less probable.” Thus, while the ultrasound tends to show that the fetus was alive, it does nothing to leave the impression that “everything was O.K. with the mother and baby.”

Even more far-fetched is Appellant’s assumption that the ultrasound left the jury with the impression that, “all of a sudden, everything was not O.K.” Obviously, the presentation of the ultrasound in no way suggests what occurred following the ultrasound procedure. At least to a lay observer, the ultrasound is equally consistent with the fetus developing problems due to a genetically defected placenta, as due to preeclampsia. Neither signs of a genetic defect, or the lack thereof, nor signs of preeclampsia, or the lack thereof, are apparent from the ultrasound. In light of its minimal prejudicial effect, it was not an abuse of discretion to admit the ultrasound into evidence.

C. Sufficiency of the Evidence

Appellant’s third contention is that Appellees presented insufficient evidence that the fetus was viable and, therefore, Appellant was entitled to a directed verdict.

However, Appellees did present expert testimony that a fetus delivered at 31 weeks — the point at which Appellant discovered Hillman’s high blood pressure— could survive. Specifically, Dr. Fields, an obstetrician and gynecologist, testified that on August 7, Hillman was approximately 31 weeks pregnant. According to Dr. Fields, “If you deliver that baby at 31 weeks, its statistics are overwhelmingly in favor of its survival and its survival intact.” Dr. Fields also testified that his opinion was based on a reasonable degree of medical certainty.

Appellant urges that such expert testimony was insufficient in light of allegedly contradictory testimony about the serious health risks to a child born prior to 37 weeks of pregnancy. These two assertions are not contradictory. The fact that a baby might be subject to major health risks does not necessarily make it unvia-ble. “[T]he expression ‘viable fetus’ means the baby has reached such a state of development that it can presently live outside the female body as well as within it.” Mitchell v. Couch, 285 S.W.2d 901, 905 (Ky.1955). Viability is not a guarantee that baby will live outside the womb; it is only a claim that the fetus has developed sufficiently that it is possible to survive. An unhealthy baby may still be a viable one.

Viability would only be undercut by testimony of certain death resulting from a premature birth. No such testimony was offered here. Even if it had, the Appellees offered testimony to the contrary, which would have been sufficient to avoid a directed verdict. Similarly, even if testimony about health risks that was introduced at trial did contradict other evidence of the viability of the fetus, the controversy would not entitle Appellant to a directed verdict, removing it from the purview of the jury. On the contrary, it is precisely the jury’s role to resolve such factual disputes. Cf. Dixie Ice Cream Co. v. Ravenna Grocery Co., 306 Ky. 182, 184, 206 S.W.2d 824, 825 (1947) (jury determines which witnesses’ testimony to believe). With direct expert testimony that the fetus was viable, there is no doubt the evidence was sufficient for the jury to conclude the same.

D. Juror Misconduct

Appellant characterizes his final claim as juror misconduct, although he admits any error was through no fault of the jurors themselves.

During jury deliberations, two jurors became ill, complaining of chest pains and blood pressure spikes. They were sent to the hospital for treatment. Deliberations were postponed for six days until the jurors returned from their treatment.

Appellant actually sets forth two claims of error based on this bizarre incident: that the delay in deliberations is itself grounds for mistrial and that the coincidental onset of juror high blood pressure in a trial about the treatment of high blood pressure biased the jury against Appellant.

1. Delay as a Due Process Violation

As to the first point, which is actually a due process claim, an appellant ordinarily must establish prejudice from the delay to obtain a reversal. See Knuckles v. Commonwealth, 315 S.W.3d 319, 322 (Ky.2010). There was no indication of actual prejudice here. The court individually questioned each juror whether he or she had been affected in any way by the delay and no problems were reported.

In the absence of proof of actual prejudice, this Court recently enumerated several considerations to help determine whether prejudice should be presumed. See id. at 323. Those considerations are the length of the delay, whether there was a good reason for the delay, whether the trial court properly admonished the jurors against communicating about the ease with others prior to the separation, whether the case was so complex that a prolonged interruption would have a significant effect on the jurors’ ability to remember complicated facts, whether alternatives to delaying the trial existed, and the extent of publicity surrounding the case.

Id.

When applied to the delay at issue here, these considerations support the trial court’s decision to deny a mistrial. First, the delay in jury deliberations lasted six days, less than half as long as the fourteen-day delay this Court upheld in Knuckles. Second, there was certainly a good reason for the delay when two jurors needed to be hospitalized for treatment. Third, the trial court specifically and repeatedly “admonished the jurors against communicating about the case with others prior to the separation” during the delay. Fourth, this trial did not involve particularly complex factual issues that would easily have been confused after a six-day hiatus. On the contrary, the only real factual dispute revolved around the reasonableness of maintaining a standard delivery schedule in light of heightened blood pressure in the mother. Additionally, the court noted the jurors had taken copious notes during trial and that if any problems recollecting testimony did occur, those notes would be satisfactory to assist them. Fifth, there was no alternative to delaying the trial because a circuit court jury cannot consist of less than twelve jurors absent a stipulation thereto by the parties. See Ky. Const. § 248; CR 48. Nothing in the record indicates any offer by the parties to do so. Sixth, the trial court reasonably presumed that there would not be significant publicity surrounding the trial such that the jurors would be easily solicited. Neither party was a public figure nor was the medical malpractice case one of particularly great public importance.

It is true that “prejudice is much more likely to be presumed where the delay occurs after jury deliberations have begun.” Knuckles, 315 S.W.3d at 323. That jury deliberations have begun, however, does not require a presumption of prejudice. Only in situations where a long delay occurs for no good reason, does the fact that it came in the midst of jury deliberations caution heavily in favor of a mistrial. See People v. Santamaria, 229 Cal.App.3d 269, 280 Cal.Rptr. 43 (1991), cited with approval in Knuckles, 315 S.W.3d at 323. Where, as here, all or most of the factors counsel against presuming prejudice, a mistrial should not be ordered regardless of the stage at which the delay occurred.

2. Prejudice of the Affected Jurors

Turning to Appellant’s second theory of juror misconduct, no bias can be discerned from the coincidental development of high blood pressure among two jurors. It is worth noting that the two jurors to have experienced high blood pressure fell on opposite sides of the verdict. As that split suggests, there is no cause to believe a juror with high blood pressure is more or less sympathetic to a doctor’s treatment of high blood pressure during pregnancy.

If suffering from high blood pressure undermined a juror’s impartiality in this case, Appellant had the opportunity to identify such biased jurors in voir dire. Not having done so, Appellant cannot fairly attack the impartiality of jurors who develop high blood pressure, or suffer from its symptoms, after the onset of trial. Cf. Adkins v. Commonwealth, 96 S.W.3d 779, 795 (Ky.2003) (“A motion to excuse a juror for cause ordinarily must be made during voir dire.”). Appellant has not explained why such jurors would disfavor doctors who treat high blood pressure related to pregnancy or would otherwise unfairly pre-judge the matter.

III. Conclusion

For the aforementioned reasons, the decision of the Court of Appeals is hereby affirmed.

MINTON, C.J.; ABRAMSON, SCHRODER, SCOTT and VENTERS, JJ., concur. MINTON, C.J., also concurs by separate opinion in which ABRAMSON, J., joins. CUNNINGHAM, J., dissents by separate opinion.

MINTON, C.J.,

CONCURRING:

I concur in result and with most of the reasoning in the majority opinion, but I write separately to highlight a few key points.

First, I wish to make clear that with very few exceptions introduction of a party’s liability insurance coverage is prohibited by Kentucky Rules of Evidence (KRE) 411. And I believe that every effort should be made to reveal witness bias without resorting to introducing evidence of a party’s liability insurance coverage. While I wonder if Dr. Butcher’s bias here could have been shown without- resorting to admitting evidence of Dr. Woolum’s liability insurance coverage by the same carrier, I do not believe the trial court’s admission of the evidence was an abuse of discretion under the unique facts of this case.

Despite Dr. Butcher’s statement at trial that he did not believe this particular lawsuit would affect his own insurance premiums, his deposition testimony could reasonably support a contrary conclusion that he perceived a personal financial stake in the outcome of this case. For example, Dr. Butcher recounted how he was forced to flee another state to escape increased insurance premiums; and he described how insurance premiums had recently increased in Kentucky. He further recounted lawsuits that were filed against him and other doctors, frequently describing particular malpractice lawsuits as “nuisance suits.” In particular, the manner in which Dr. Butcher described his personal experiences and expressed opinions could lead to an inference that he generally harbored hostility toward malpractice lawsuits and perceived doctors as being persecuted by exorbitant insurance premiums caused by lawsuits that were almost always frivolous.

Further, I agree with the trial court that the fact that this expert practiced at the same hospital as' Dr. Woolum suggests that this expert might have perceived a personal financial stake in the outcome of this case. It is not clearly beyond the realm of possibility that a malpractice lawsuit filed against a doctor practicing at the same hospital might have a more direct effect on his premiums than other malpractice lawsuits.

Second, I acknowledge Dr. Woolum’s allegation that the ultrasound videotape was presented in such a theatrical manner as to heighten its prejudicial effect. Specifically, he asserts that the ultrasound videotape was played while Ms. Hillman occupied the witness stand and wept openly in full view of the jury. Upon review of the record provided us, I would note that Ms. Hillman is not directly visible on the portion of the trial videotape during which the ultrasound videotape was played. But her attorney can be seen handing her a box of tissues and a few soft sniffles can be heard during the playing of the ultrasound videotape.

Directly after the ultrasound videotape presentation, Ms. Hillman resumed her testimony in a composed manner with no emotional outbursts. Having reviewed this portion of the record, I conclude that although the ultrasound videotape was of dubious probative value, any error in its presentation was harmless given the inherent emotional nature of this case, the apparent lack of truly overwrought emotional display, and the fact that other evidence also established that the fetus was known to be viable with no apparent defects at that point.

Although perhaps the better practice might have been to not admit the ultrasound videotape — as the trial judge later admitted with the benefit of hindsight— the effect of the few minutes of unnarrated ultrasound videotape presentation was unlikely to have had a substantial effect on the judgment following a generally well-managed and fair multi-day trial. So any error was harmless. See Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky.2009), citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). (“A non-constitutional evidentiary error may be deemed harmless, the United States Supreme Court has explained, if the reviewing court can say with fair assurance that the judgment was not substantially swayed by the error”). See also Kentucky Rules of Civil Procedure (CR) 61.01; KRE 103.

I concur with the majority that the opinion of the Court of Appeals affirming the trial court judgment must be affirmed.

ABRAMSON, J., joins.

CUNNINGHAM, J.,

dissenting:

With great reluctance, and after much soul searching, I dissent.

My reticence in disagreeing with the majority begins with the heart rending plight of the Appellees who are in bad need of closure in this case. However, regardless of this consideration, fairness must be weighed on balanced scales. I am also hesitant to disagree with the very fine scholarship and writing of both Justice Noble, writing for the majority, and Chief Justice Minton in his concurring opinion.

But, at last I dissent because of the six-day delay in the deliberations. With the other close issues discussed by the majority in this case, this interlude in the deliberative process should have ended the trial in a mistrial.

Much emphasis has been placed on the Knuckles case in upholding the trial court in this case. That criminal case was much different. It was continued only after one day of trial. Both sides still had the opportunity to shore up their cases to accommodate what damage they may had perceived was brought about due to the delay. Also, in Knuckles, the delay was due to the unfortunate events impacting the judge. Here, the cause of the delay impacted the jury. Two jurors — -fact-finders and verdict-makers of the case — suffered traumatic physical problems. Both incurred hospital stays. The parties in this case were entitled to a continuous, uninterrupted deliberation by the jury with its members spared of any life-altering experiences being visited upon them. Mistrials are the calamities of trials gone awry. But they have their place. One should have been declared in this case. For that reason, I respectfully and reluctantly dissent from the well-crafted opinion of the majority.

      . The Appellees brought suit as surviving parents. Lisa Ann Hillman also sued as the administratrix of the decedent's estate. Regardless of how the Appellees, as the plaintiffs, were named, Kentucky law recognizes a cause of action by the parents for negligence resulting in the death of a viable fetus. See Rice v. Rizk, 453 S.W.2d 732 (Ky.1970).

      . The Court of Appeals reversed on issues related to damages but those are not before this Court.


author: VENTERS, SCOTT, J.,

text:
    Shane GRANGER, Appellant v. LOUIS TRAUTH DAIRY; Honorable Douglas W. Gott, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2010-SC-000253-WC.
    Supreme Court of Kentucky.
    Dec. 16, 2010.
    Thomas Lawrence Hicks, Sutton Rankin Law, PLC, Edgewood, KY, Councel for Appellant, Shane Granger.
    Stephen Randall Chappell, Mark Joseph Hinkel, Landrum & Shouse, LLP, Lexington, ICY, Counsel for Appellee, Louis Trauth Dairy.
   OPINION OF THE COURT

An Administrative Law Judge (ALJ) dismissed the claimant’s application for benefits, having found that he failed to give timely notice as required by KRS 342.185. The Workers’ Compensation Board affirmed the decision, and a divided Court of Appeals affirmed the Board. Appealing, the claimant asserts that the ALJ erred by failing to find under KRS 342.200 that a mistake or reasonable cause excused his delay in giving notice.

We affirm. Evidence that what at first appeared to be an insignificant bruise had failed to heal after two months; developed into an open, draining sore; and concerned the claimant sufficiently to cause him to seek medical attention clearly does not compel a finding that he remained mistaken about the seriousness of his injury and acted reasonably by failing to report the accident and injury until sometime thereafter.

The claimant worked as a machine operator in the defendant-employer’s dairy. He testified that he injured his right leg on August 15, 2007, when a case filled with nine half-gallons of milk came down a chute and struck him in the shin with sufficient force to knock him to the ground. The accident left a welt or red mark on his leg. He stated that Billy Wehr, a co-worker, observed the accident as well as the mark that it left on his leg and told him “that looks like it hurts.”

The claimant admitted that his leg hurt for a little while but stated that he did not consider the injury to be a “big deal” at the time. The swelling was a little larger the next day and bruising became evident. The bruising appeared to increase in the following days, but he did not seek medical treatment because the skin was not broken. Nor did he fill out an accident report.

The claimant testified that his shin remained bruised through October, 2007, more than two months after the accident. Moreover, it became red and discolored and an open sore developed and began to drain. He attempted self-treatment but eventually sought treatment with his family physician on November 7, 2007 because the wound failed to heal. His health insurance carrier paid part of his physician’s medical bills and those of a wound specialist to whom he was later referred.

The claimant testified that he notified Ed Kramer of the injury sometime in November 2007, probably between his first and second medical appointments. He stated that he told Kramer he needed to complete an accident report but that Kramer told him it was too late to do so. After stating initially that he did not report the injury to Dave Wiseman, he testified that he did discuss the injury with Wiseman at some point but that Wiseman refused to prepare a report for an incident that occurred five months earlier. The claimant stated that the report was prepared eventually at the direction of the dairy’s human resources department.

Ed Kramer, the dairy’s production manager, was present for about four hours of the claimant’s shift on August 15, 2007. Kramer testified that the claimant never reported a work-related injury to him. He became aware of the injury after the claimant’s medical treatment began but did not know that it was work-related until Dave Wiseman was asked to complete an accident report.

Dave Wiseman, a production supervisor, testified that he learned “months after the injury” that the claimant had problems with his leg. He stated that the claimant did not report the injury to him but that Bill Wehr, an hourly employee and union representative, presented him with an accident report relating to the injury in January 2008. Wiseman testified that the dairy has a policy requiring that any work injury be reported, no matter how small.

The claimant asserted that he gave timely notice because a reasonable cause excused his delay in notifying the employer of his accident and injury. He argued that the delay resulted from his mistaken belief that the injury was insignificant. He maintained that he gave notice when he learned otherwise.

The ALJ dismissed the claim, having found that the claimant failed to give notice “as soon as practicable.” The ALJ agreed with the claimant that an employee is not required to report “every little bump and bruise that occurs in the workplace” and that an employer’s requirement to report “any injury, no matter how small” does not control the statutory notice requirement. The ALJ noted, however, that an accident forceful enough to knock the claimant to the ground was more than a trivial event. Although appreciating why the claimant failed to report the accident immediately, the ALJ found it unreasonable for him to have continued to believe that the injury was no “big deal” when it began to worsen and develop into an open sore. The claimant clearly knew that the sore resulted from his accident before seeking medical treatment almost three months after the injury. Yet he failed to notify his employer until sometime thereafter. The ALJ found no particular prejudice to the employer because earlier medical treatment probably would not have prevented the injury from worsening but concluded that to find notice to be timely under the circumstances would negate the requirement that notice be given “as soon as practicable.”

Three statutes govern the notice requirement, KRS 342.185, KRS 342.190, and KRS 342.200. When read in concert, KRS 342.185 and KRS 342.190 require an injured worker to give written notice of a work-related accident, including certain details regarding the accident and resulting injury, and to do so “as soon as practicable” after the accident occurs. The purpose of the requirement is threefold: 1.) to enable an employer to provide prompt medical treatment in an attempt to minimize the worker’s ultimate disability and the employer’s liability; 2.) to enable the employer to investigate the circumstances of the accident promptly; and 3.) to prevent the filing of fictitious claims. KRS 342.200 excuses an inaccuracy in complying with KRS 342.190 unless it misleads and injures the employer. It also excuses a delay in giving notice if the employer has actual knowledge of the injury or if the delay results from mistake or other reasonable cause. Although a lack of prejudice to the employer excuses an inaccuracy in complying with KRS 342.190, it does not excuse a delay in giving notice.

The claimant had the burden to prove that he gave notice of his accident and resulting injury “as soon as practicable.” Having failed to convince the ALJ that he did so, his burden on appeal is to show the decision to be unreasonable under the circumstances because overwhelming evidence compelled a favorable finding. He fails to do so.

The claimant asserts that nothing requires a worker to report “a minor incident in which there is no injury.” He argues that he failed to give immediate notice of his accident “because he mistakenly thought he had an innocuous bump.”

Moreover, the fact that his physician “applied a cream and a bandage” continued to lead him to believe that the accident and injury were “no big deal.” He states that he did provide notice “as soon as he learned that his understanding of his bump was incorrect.”

This case involves an injury resulting from a single workplace accident of which the claimant was aware. Contrary to the authority upon which he relies, this is not a case in which he gave notice of the work-related accident but delayed in giving notice of the resulting injury. Nor is it an occupational disease case, which involves a different notice requirement, or a case involving conflicting diagnoses, one of them from a company doctor. Finally, unlike all of the authority upon which he relies, this is not a case in which the question on appeal is whether substantial evidence supported a finding that notice of the accident and resulting injury was timely. At issue is whether overwhelming favorable evidence compelled such a finding. We conclude that it did not.

Although it may be impractical to expect a worker to report every minor workplace bump and bruise, an accident forceful enough to knock a grown man to the ground and cause a welt on his leg clearly is more than a trivial event. Yet immediately after sustaining such an accident, a worker might reasonably view some swelling and what appears to be only a minor bruise as being an insignificant injury that does not warrant reporting. Continuing to view the accident and injury as being insignificant becomes less and less reasonable, however, when the harmful changes heal slowly, fail to heal, or worsen.

The ALJ decided this case reasonably. The claimant failed to give notice of his accident and injury until about three months after they occurred. Evidence that what at first appeared to be an insignificant bruise had failed to heal after two months; developed into an open, draining sore; and concerned the claimant sufficiently to cause him to seek medical atiention clearly does not compel a finding that he remained mistaken about the seriousness of his injury and acted reasonably by failing to report the accident and injury until sometime thereafter.

The decision of the Court of Appeals is affirmed.

All sitting. MINTON, C.J.; ABRAMSON and SCHRODER, JJ., concur. VENTERS, J., concurs in result only by separate opinion. SCOTT, J., dissents by separate opinion in which CUNNINGHAM and NOBLE, JJ., join.

VENTERS,

in result only.

Although I agree with the concern expressed by Justice Scott in his dissenting opinion, that a worker should not be expected to report as a work-related “accident” under KRS 342.185 what would appear to be an inconsequential cut, bruise, or blow causing no compensable injury or requiring no medical attention, I concur in result with the Majority Opinion because Appellant failed to give notice of his injury until long after its serious and consequential nature became obvious.

SCOTT, J.,

dissenting.

I must respectfully dissent as the majority’s holding — barring Appellant’s claim on the basis the notice was untimely — fails to give due consideration to the “mistake or other reasonable cause” provision of KRS 342.200. In my opinion, such a restrictive view disregards the General Assembly’s mandate that “all statutes of this state shall be liberally construed” to accomplish “the intent of the legislature.” KRS 446.080(1). “This principle of protecting the interests of the injured worker is a basic tenet of workers’ compensation law.” Ronald W. Eades, 18 Ky. Prac., Workers’ Comp. § 1:3 (2010-2011). Instead, the majority’s holding furthers a policy that forces workers to report every bump and bruise posthaste in order to preserve a possible right to appropriate remuneration. This is a substantial disincentive for honest workers (who self-treat minor work-related injuries), and instead forcefully channels them into litigious positions.

Like thousands of workers in this Commonwealth, a heightened risk of physical injury is implicit in Appellant’s work. Thus, the majority’s attempt to emphasize the unreasonableness of not initially reporting this incident due to the circumstances (he was “struck ... with sufficient force to knock him to the ground”) is misplaced. Appellant is an industrial laborer, working near a chute that expels crates of milk. In some lines of work, being physically knocked down during work might be an extreme occurrence. Here, however, the reality of the situation is that Appellant was struck by a crate which caused a minor welt, not even enough to make him quit working.

And as this welt later became a bruise, Appellant acted reasonably in self-treating what appeared to be a trivial injury. Moreover, he continued to work. Unfortunately, the bruise did not heal as expected, forcing him to seek medical treatment, which expectantly necessitated his filing a claim.

Now, with hindsight, his claim is denied on the grounds that his notice of the injury was untimely. Yet, KRS 342.200 provides in this regard, that:

Want of notice or delay in giving notice shall not be a bar to proceedings under this chapter if it is shown that the employer, his agent or representative had knowledge of the injury or that the delay or failure to give notice was occasioned by mistake or other reasonable cause.

(emphasis added). Furthermore, KRS 446.080(1) provides:

All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state.

See also, Firestone Textile Co. Div., Firestone Tire and Rubber Co. v. Meadows, 666 S.W.2d 730, 732 (Ky.1983) (“All presumptions will be indulged in favor of those for whose protection the enactment was made.”).

Quite clearly, Appellant is not a doctor, and he did not reasonably foresee the serious nature of what appeared to be a minor injury. And though he mistakenly believed he did not need medical treatment, given the bruise’s appearance — not to mention life’s normal experiences with bruises — his mistake was reasonable.

In my opinion, the present case is similar to Little, wherein we held that KRS 342.200 did not bar the claim because, “[t]he employee’s failure to give more adequate notice of a specific injury was because of his mistaken personal diagnosis and want of better knowledge.” Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866, 868 (Ky.1962) (emphasis added).

Little involved a workers’ compensation claim filed approximately two years after the accident and nine months after the employee’s death. Like Appellant’s injury, the employee in Little suffered bruising and abrasions, but “was not aware of the serious nature of his injury.” Id. Later complications resulted in his death; however, we held that the failure to report the specific injury was not a bar. Based on Little, Appellants understandable delay in reporting his claim should also be excused by KRS 342.200’s “mistake or other reasonable cause” exception.

However, the majority focuses primarily on whether Appellant gave notice to his employer “as soon as practical” as mandated by KRS 342.185(1). As quoted, the three-fold purpose of the 342.185(1) requirement is: “(1) to enable the employer to provide prompt medical treatment in an attempt to minimize the worker’s ultimate disability and the employer’s liability; (2) to enable the employer to make a prompt investigation of the circumstances of the accident; and (3) to prevent the filing of fictitious claims.” Trico County Development & Pipeline v. Smith, 289 S.W.3d 538, 542 (Ky.2008). Yet here, none of these purposes are furthered by barring Appellant’s claim.

First, the ALJ specifically found that “it is unlikely that if [the employer] had received immediate notice of the injury-producing bruise it would have directed [Appellant] to any particular medical treatment that would have warded off the [unexpected] open sore that developed from the bruise.” Thus, the first purpose of KRS 342.185 — prompt medical treatment which minimizes employer liability— would not have been served. -Next, the second and third purposes, prompt investigation and prevention of fictitious claims, are not present, as there is not even a hint that the injury resulted from a non-work related cause (i.e. horseplay) or that Appellant fabricated his claim. To the contrary, the ALJ found that “[Appellant] presents with [sic] a sympathetic case.”

Therefore, under the “greater latitude” appellate standard when reviewing mixed questions, I would hold that the ALJ’s findings “were [not] supported by evidence of probative value.” Purchase Transp. Services v. Estate of Wilson, 39 S.W.3d 816, 817-818 (Ky.2001) (quoting the appellate standard of review for mixed questions of law and fact). Appellant mistakenly diagnosed his work-related injury as minor, and reasonably attempted to treat the bruise. I simply cannot support a holding that penalizes a worker who attempts to self-treat what started out as a simple bruise by barring his workers’ compensation claim. Moreover, such a holding does not comport with the liberal statutory construction directives and creates a system that mandates every employee immediately report each minor injury or risk forfeiting his workers’ compensation claim.

Thus, I agree with Senior Judge Lambert’s dissent in the Court of Appeals, and share his concern that the majority’s holding will inundate industrial employers with trivial complaints, and I therefore dissent.

CUNNINGHAM and NOBLE, JJ., join.

      . KRS 342.200.

      . Smith v. Cardinal Construction Co., 13 S.W.3d 623 (Ky.2000); Harlan Fuel Co. v. Burkhart, 296 S.W.2d 722 (Ky.1956).

      . Trico County Development & Pipeline v. Smith, 289 S.W.3d 538, 542 (Ky.2008); Blue Diamond Coal Company v. Stepp, 445 S.W.2d 866, 868 (Ky.1969). Stepp overruled Mengel v. Axley, 311 Ky. 631, 224 S.W.2d 921 (1949), in which a predecessor court determined that whether a delay in giving notice of an accidental injury precluded compensation depended primarily on evidence of employer prejudice but also on whether the delay resulted from mistake or other reasonable cause. The Mengel court affirmed a finding that notice given one month after the accident was reasonable in a case involving no employer prejudice and an honest belief that the injury was slight.

      . Whittle v. General Mills, Inc., 252 S.W.2d 55 (Ky.1952).

      . Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986).

      . Proctor & Gamble Mfg. Co. v. Little, 357 S.W.2d 866 (Ky.1962) (court affirmed finding of timely notice where employer notified of accident and what appeared to be minor inju-des and where not unreasonable for worker to fail to give notice of more serious injury of which he was unaware); Rowe v. Semet-Solvay Division Allied Chemical & Dye Corp., 268 S.W.2d 416 (Ky.1954) (court affirmed finding of timely notice where worker loading coal made statement concerning back pain to section boss, visited company doctor the next day, and failed to return to work thereafter and gave further notice of accident and resulting injury immediately' upon diagnosis of herniated disc).

      . Harlan Fuel Co. v. Burkhart, 296 S.W.2d 722 (Ky.1956) (distinguishes authority concerning notice requirement for accident from that for occupational disease; company doctor’s misdiagnosis of tuberculosis provided reasonable cause for miner’s delay in giving notice that other physicians diagnosed silicosis until after company doctor informed him of correct diagnosis).


text:
    Susan GARNO, Appellant v. SOLECTRON USA; Honorable Grant S. Roark, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2010-SC-000154-WC.
    Supreme Court of Kentucky.
    Dec. 16, 2010.

      Wayne C. Daub, Louisville, KY, Counsel for Appellant, Susan ’Gamo.
    Kimberly K. Van Der Heiden, Allen, Kopet & Associates, PLLC, Lexington, KY, and Lyn Douglas Powers, Fulton & Devlin, Louisville, ICY, Counsel for Appel-lee, Solectron USA.
   OPINION OF THE COURT

An Administrative Law Judge (ALJ) found that the claimant’s Form 114 requests for reimbursement of medical expenses were non-compensable with respect to expenses incurred more than 60 days before being submitted and that no reasonable grounds excused the delay. The Workers’ Compensation Board and the Court of Appeals affirmed. Appealing, the claimant asserts that her reimbursement requests were timely and that her attempts to request reimbursement were reasonable under the circumstances.

We affirm because the record does not reveal an error in applying the law or an abuse of the ALJ’s discretion. Contrary to the claimant’s assertion, the March 2006 order finding her injuries to be work-related and directing insurance carriers to pay interlocutory temporary total disability (TTD) and medical benefits equally was enforceable. The record did not compel a finding that she submitted a reimbursement request before entry of the interlocutory order or show a reasonable cause for her failure to do so until January 2007.

The claimant worked for Solectron-USA from February 2002 until sometime in February 2004. She filed an application for benefits in January 2005 in which she alleged that she sustained work-related low back injuries on October 14, 2002 and January 15-16, 2004. She listed Royal & Sun Alliance (now Arrowpoint Capital Corporation) as the employer’s workers’ compensation insurance carrier. Although Royal insured Solectron’s liability in 2002, St. Paul Travelers insured its liability in 2004. ALJ Cowden joined Travelers as a party on May 9, 2005, the date of the first scheduled Benefit Review Conference (BRC), and counsel representing Solectron as insured by Travelers entered an appearance shortly thereafter.

ALJ Cowden bifurcated the claim in December 2005 because the claimant had not reached maximum medical improvement (MMI) from an L3^1-5 fusion performed in June 2005. The issues submitted for a decision at that time included work-relatedness/causation; the apportionment of liability between the carriers; whether an injury occurred as defined by the Workers’ Compensation Act; and the claimant’s entitlement to temporary total disability (TTD) benefits and medical expenses.

In an order and award entered on March 24, 2006, ALJ Cowden found the alleged injuries to be work-related and ordered Royal to pay all TTD and medical benefits due from October 14, 2002 through January 16, 2004. Convinced that the injuries contributed equally to the need for the L3-4-5 fusion, ALJ Cowden apportioned equal liability to the insurance carriers for TTD and medical benefits after January 17, 2004, which included the surgery. Questions concerning the extent and duration of disability, application of benefit modifiers, and entitlement to vocational rehabilitation were held in abeyance until such time as the claimant reached maximum medical improvement (MMI). An amended order entered on May 4, 2006 specified the periods of TTD resulting from the 2002 injury for which Royal bore sole liability and specified January 14, 2004 as being the final date from which Royal bore sole liability for the claimant’s medical expenses.

Evidence produced subsequently indicated that the claimant moved to Florida in November 2005 and began treatment with Dr. Billys, who recommended a discogram and possible fusion at L5-S1. Dr. Gleis evaluated the claimant for Solectron and reported in September 2006 that she had reached MMI from the surgery performed in 2005. He stated that he did not think the additional surgery proposed by Dr. Billys would improve her low back condition. The claim was then reassigned to ALJ Roark, who ordered TTD to be terminated and removed the claim from abeyance.

On January 29, 2007 the claimant’s attorney submitted to the carriers multiple Form 114 reimbursement requests with attached invoices and receipts that claimed over $20,000.00 in out-of-pocket medical expenses, some of which dated to 2002 and 2003. The forms were signed by the claimant and dated “May 9, 2005.” The submission also contained a document indicating that Dr. Billys was scheduled to perform the L5-S1 fusion on January 31, 2007.

The carriers filed medical disputes to contest the requests, asserting on their Form 112 filings that the requests were untimely under 803 KAR 25:096, § 11 and were not supported by the documentation necessary to determine if the expenses were compensable. They contested liability for the L5-S1 fusion and treatment provided by Dr. Billys and moved to have him joined as a party, complaining that the claimant failed to request pre-authorization, which prevented the employer from conducting utilization review, and also complaining that she failed to complete the form she was given in September 2006 to designate Dr. Billys as her treating physician.

The claimant filed with the Office of Workers’ Claims on May 9, 2008 and submitted to the carriers a document styled “COMPLIANCE WITH ADMINISTRATIVE LAW JUDGE’S ORDER” as well as various attachments. The submission did not include a Form 114 reimbursement request or certify that the expenses were incurred for the cure or relief of the claimant’s injuries. The attachments included receipts for some prescriptions the claimant received from 2006 through 2008, which listed the copays; a printout that listed some of the same as well as other prescriptions and included handwritten co-pays; and a list of other expenses and mileage. A separate printout from the Florida Orthopedic Institute listed various charges for the period from May 2006 through November 2007 but failed to explain their necessity. The carriers filed supplemental medical disputes to contest payment, asserting that the claimant failed to follow the proper procedure to request reimbursement and that the request was untimely.

The claimant acknowledged at the hearing that she failed to direct medical bills incurred after March 2006 to be submitted directly to the carriers. She also acknowledged that she knew they were equally liable but used her health insurance coverage instead. She stated that she knew Dr. Billys failed to seek approval for surgery but blamed the failure on one of his employees.

ALJ Roark agreed with ALJ Cowden’s previous findings that the claimant sustained compensable injuries in 2002 and 2004 and that the injuries contributed equally to any work-related medical expenses she incurred on and after Januai’y 15, 2004. Finding the opinions of Drs. Gleis and Schiller to be more reliable than those of Dr. Billys, ALJ Roark determined that the L5-S1 fusion was non-compensable because it was neither reasonable nor necessary treatment for the injuries. Noting that the March 2006 order found expenses for treating the work-related injuries to be compensable, the ALJ determined that the claimant offered no reasonable excuse for her failure to submit reimbursement requests until January 11, 2007. The ALJ concluded as a consequence that expenses incurred more than 60 days before January 11, 2007 and subsequent expenses incurred more than 60 days before submission were not com-pensable under KAR 25:096, § 11.

The claimant asserts that ALJ Roark erred by finding her reimbursement requests to be untimely. She argues that she made reasonable attempts to seek reimbursement, pointing to her hearing testimony that she first submitted reimbursement requests to the attorney who represented Solectron at the May 9, 2005 BRC and to the fact that the requests submitted in January 2007 were dated May 9, 2005. She also argues that her obligation to submit reimbursement requests did not begin with the interlocutory order of March 24, 2006 because the order would not have been enforceable. She maintains that her requests were timely, reasoning that she was entitled to submit them within a reasonable period after ALJ Roark entered the final award but did so before he entered the award. We disagree. The record reveals no error in applying the law or abuse of discretion by ALJ Roark.

KRS 342.020 entitles an injured worker to reasonable and necessary medical treatment for the effects of a work-related injury. It also seeks to ensure that medical services are provided efficiently and economically by requiring injured workers to designate a single treating physician or physicians’ group to supervise medical services; by permitting employers to provide medical services through a managed health care system; and prohibiting fees that exceed medical fee schedules. KRS 342.020 and the accompanying regulations also seek to ensure the prompt billing and payment of compensable medical expenses by imposing certain duties on providers, employers, and injured workers.

KRS 342.020(1) requires a provider to submit a statement for services within 45 days of the date that treatment of a work-related injury is initiated and every 45 days thereafter. It then requires the employer to pay the provider within 30 days of receiving the statement unless the period is tolled by regulation, such as during utilization review. At issue presently is 803 KAR 25:096, § 11, which permits a worker to be reimbursed for reasonable expenses incurred in accessing compensa-ble medical treatment. The regulation requires a reimbursement request to be made on a Form 114 and submitted to the employer within 60 days of incurring the expense but permits reasonable grounds to excuse a failure to submit a timely Form 114.

We find no merit in the claimant’s argument that her obligation to present reimbursement requests did not arise until a final award was entered because the interlocutory order would not have been enforceable. KRS 342.275(2) authorizes an ALJ to “grant or deny any benefits afforded under this chapter, including interlocutory relief....” Moreover, KRS 342.305 permits a party to obtain a circuit court judgment in accordance with “an order or decision of the administrative law judge or board, or an award of the administrative law judge unappealed from.... ” These provisions clearly permit the terms of an ALJ’s interlocutory order and award to be enforced until superseded by a subsequent order or award.

The interlocutory order and award entered in March 2006 found the claimant’s injuries to be work-related and directed the insurance carriers to pay TTD and medical benefits equally. The order on reconsideration entered in May 2006 found Royal solely liable for compensable medical expenses incurred through January 14, 2004. Nothing in the record compelled a finding that the claimant submitted a reimbursement request before January 2007 or demonstrated a reasonable cause for her failure to do so until then.

The decision of the Court of Appeals is affirmed.

All sitting. All concur.

      . 803 KAR 25:096, § 11(2) and (3).

      .Nothing in the record supports the claimant’s testimony that she submitted the reimbursement requests at the BRC. Solectron denied receiving them. Moreover, Travelers was not joined as a party until the date of the BRC and did not enter an appearance until sometime thereafter. Both carriers attached Form 114 reimbursement requests dated May 9, 2005 to the medical disputes that they filed after receiving the claimant’s January 29, 2007 submission. The claimant filed requests dated May 9, 2005 into the record on June 11, 2008.

      . KRS 342.020(1).

      . KRS 342.020(5).

      . KRS 342.020(3) and (4).

      . KRS 342.020(1). See also KRS 342.035.

      .803 KAR 25:190, § 5(4).


author: /s/ John D. Minton, Jr. Chief Justice

text:
    James Gregory TROUTMAN, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000698-KB.
    Supreme Court of Kentucky.
    Jan. 20, 2011.
   OPINION AND ORDER

Pursuant to SCR 3.480(2), James Gregory Troutman, KBA Number 84473 (suspended), moves this Court to impose on him a thirty-day suspension from the practice of law to resolve the charges contained in KBA File 17078. Troutman was admitted to practice law in Kentucky on October 16, 1992, and his last known bar roster address is 4000 Abbeywood Village Drive, Louisville, KY 40241.

KBA File 17078 charges Troutman with violating SCR 3.130-3.4(c) and SCR 3.130-5.5(a) by practicing law while suspended by Order of this Court. On January 25, 2007, Troutman entered an Alford plea to two counts of first-degree wanton endangerment, one count of first-degree criminal mischief, and one count of criminal littering. See Troutman v. KBA, 275 S.W.3d 175 (Ky.2008). Although the charges were ultimately dismissed — diverted pursuant to KRS 533.258, with prejudice — Troutman moved this Court to be suspended for two years admitting that “his entry of an Alford plea [was] proof that he engaged in conduct that violated SCR 3.130-8.3(b) (Tt is professional misconduct for a lawyer to ... [c]ommit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’).” Id. at 176. We granted Troutman’s motion and suspended him for two years, retroactive to January 25, 2007.

The current charges against Troutman stem from work he performed in 2008, while he was suspended. Mary Padden, an attorney in Louisville, hired Troutman to do research, prepare drafts of documents, and review certain documents she drafted for use in a Nevada court case involving a private construction equipment company (hereinafter “Company”). Prior to his suspension Troutman represented one of the Company’s owners. Troutman apparently had been told by this owner that he planned to make him a minority owner of the Company, and thus Troutman believed he had a personal interest in the Nevada court case. Padden supervised Ti’outman and reviewed all of the documents he drafted. Troutman participated in conversations with the Company’s Neva-cla counsel and with the other owners of the Company. He also attended one of the Nevada court proceedings, though he was not recognized as counsel and states he provided no legal assistance during the proceeding.

Troutman now acknowledges that his participation in the Nevada lawsuit — preparing documents, conferring with one or more of the owners of the Company, not expressly informing the parties that he was unlicensed, and attending the Nevada court proceeding — crossed the line from non-lawyer support services to the practice of law. Troutman states that he did not intend to engage in the practice of law, but admits that objectively his actions could be viewed as engaging in the practice of law. Troutman admits that his contact with one or more of the principals of the construction equipment company violated KBA Ethics Opinion E-255.

Thus, Troutman admits that his conduct violated SCR 3.130-3.4(e) and SCR 3.130-55(a) as charged in KBA File 17078. In light of this admitted misconduct, Trout-man moves for a punishment of a thirty-day suspension from the practice of law.

The KBA has no objection to Troutman’s motion. The KBA cites to several cases in which similar misconduct led to similar sanctions. See Smith v. KBA, 250 S.W.3d 601 (Ky.2008) (granting motion for a public reprimand for violating SCR 3.130-4.1 and SCR 3.130-5.5 due to practicing law while suspended because of a mistaken belief suspension had ended); Morton v. KBA, 230 S.W.3d 328 (Ky.2007) (suspending an attorney for thirty days due to representing herself as an attorney and accepting money from a client without informing him of her suspension); Wright v. KBA, 169 S.W.3d 858 (Ky.2005) (pub-lically reprimanding an attorney for not informing the circuit court whom she appeared before that she had been suspended from the practice of law for failure to comply with CLE requirements). We accordingly agree with the KBA and GRANT the motion.

Thus it is ORDERED that:

1. Movant, James Gregory Troutman, KBA Member No. 84473, is adjudged guilty of the charges made in KBA File 17078;

2. Troutman shall therefore be suspended from the practice of law for thirty (30) days, effective as of the date hereof;

3. In accordance with SCR 3.450, Troutman is directed to pay all costs associated with these disciplinary proceedings in the amount of $53.20 for which execution may issue from this Court upon finality of this Order.

All sitting. All concur.

ENTERED: January 20, 2011.

/s/ John D. Minton, Jr.

Chief Justice

      . The charges relate to conduct which occurred in and around Troutman's neighborhood late one evening. Troutman asserts that his conduct was caused by taking a large amount of over-the-counter drugs to control his severe allergies.'