author: PALMORE, Justice. REED, Chief Justice LUKOWSKY, Justice STERNBERG, Justice

text:
    Harold FANN et al., Appellants, v. Harold McGUFFEY, Commissioner, Department of Insurance, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 27, 1975.
    As Modified on Denial of Rehearing . Nov. 26, 1975.

      Darrell B. Hancock, Peter Perlman, Fowler, Rouse, Measle & Bell, Lexington, for appellants.
    Edward L. Fossett, Gen. Counsel, G. Lee Langston, Dept, of Ins., Frankfort, Bert T. Combs, Edward L. Galloway, Edwin S. Hop-son, Tarrant, Combs & Bullitt, Louisville, for appellees.
    Gerald Kirven, Brooks Alexander, Louisville, for American Ins. Ass’n; William L. Martin, Gen. Counsel, New York City, Middleton, Reutlinger & Baird, Louisville, of counsel.
    Paul K. Murphy, Theodore S. Mussler, Jr., Murphy & Mussler, James B. Lenihan, Hargadon, Lenihan & Harbolt, Louisville, for amicus curiae (Kentucky Trial Lawyers Ass’n).
    Robert D. Preston, Lexington, for amicus curiae (pro se).
   PALMORE, Justice.

The plaintiffs in an action challenging the validity of a “no-fault” automobile insurance law enacted by the 1974 General Assembly appeal from a judgment of the Franklin Circuit Court holding it “valid and constitutional in all respects.” Except for the standing of the original and intervening plaintiffs to raise some of the issues presented, we concur in the judgment.

After much controversy and parliamentary difficulties the act was put together and adopted in the very last hours of the 1974 session. Understandably, it is not free of ambiguities which must (and can) be ironed out by judicial construction to the extent that they are critical to this or any later judicial inquiry and by legislative amendment otherwise. We express this prefatory caveat to make it clear that our initial construction of what the law in its various aspects means or should mean need not be taken as final and binding unless within the context of this opinion such a construction is necessary to its constitutional survival.

The basic framework of the law is as follows:

1. Compulsory insurance.

Except for governmental agencies, every owner of an automobile registered in Kentucky or operated by him in Kentucky must carry or provide insurance covering the payment of (a) tort liabilities for personal injuries (minimum $10,000 per person, $20,000 per accident) and property damage (minimum $5,000) and (b) no-fault “basic reparation benefits” (hereinafter called BRB). An owner or registrant who operates or permits his vehicle to be operated in this state without the required tort liability coverage commits a misdemeanor punishable by fine of not less than $50 nor more than $500.

2. Benefits and liabilities.

Regardless of fault, every person suffering economic loss from a personal injury arising out of the maintenance or use of an automobile is entitled to BRB unless he has exercised the option to reject limitation of his tort rights. On the other side of the ledger, every person who registers, operates, maintains or uses an automobile on the public roadways of Kentucky is deemed, as a condition thereof, to have accepted certain limitations upon his tort rights unless he has filed with the Department of Insurance a written rejection. This is the heart of the no-fault plan.

A rejection of the tort limitations retains undiminished both liability and the right of recovery under tort principles, without affecting the right of one who has not submitted a rejection to recover BRB. That is to say, there is no restriction on the right of an injured claimant who collects BRB to recover the balance of his damages from a culpable defendant who has submitted an unrevoked rejection (the claimant’s insurer being subrogated to the extent of BRB paid). On the other hand, one who has rejected the tort limitations has the right to purchase from his insurer, for his own benefit, the same first-party benefits available to those who have not rejected the tort limitations. Though he must in any event carry BRB coverage for the protection of third parties, his rejection does not prevent the purchase of no-fault benefits payable to himself.

As may be seen, the act limits rather than abolishes tort liability, and is a “modified” no-fault law.

8.Limitations upon benefits and liability•

BRB is confined to “economic” loss consisting of medical expense, loss of work income, expense for assistance and, in the event of death, funeral expenses not exceeding $1,000 and certain other incidental losses to the survivors. Except for the item of medical expense it is limited to $200 per week and an over-all maximum of $10,000.

Losses of this category in excess of the injured party’s BRB are recoverable from the tortfeasor free of any limitation imposed by the no-fault law. Though KRS 304.39-060(2)(a) speaks in terms of “abolishing” tort liability, it is an abolition only in the most technical sense, because in practicality the injured party’s right of recovery is enhanced by his entitlement to BRB without proof of fault. From his standpoint, it is only the necessity of proving fault that is abolished, and from the standpoint of the alleged tortfeasor, of course, whatever is abolished in the way of liability is all to the good. Therefore, KRS 304.39-060(2)(a) confers a positive benefit on both parties at no disadvantage at all to either of them.

The rub comes with KRS 304.39-060(2)(b), the next subsection, which is aimed at eliminating the main brunt of small personal-injury claims but undoubtedly will in some instances abolish claims for pain and suffering that are not so small.

KRS 304.39-060(2)(b) provides in substance that in any tort action against the owner, registrant, operator or occupant of an automobile for which the required liability and BRB coverage has been provided, or against a defendant who is responsible for the acts or omissions of such a party, the plaintiff may recover “for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease . only in the event” he meets one or more of the following “threshold” conditions:

(1) His reasonable medical expenses exceed $1,000 (disregarding exclusions and deductions) or, if he was entitled to and received free medical or surgical treatment, the value of such treatment was at least $1,000;

(2) The injury or disease includes one or more of the following:

(a) Permanent disfigurement;
(b) Fracture of a weight-bearing bone;
(c) A compound, comminuted, displaced or compressed fracture;
(d) Loss of a body member;
(e) Permanent injury within reasonable medical probability;
(f) Permanent loss of bodily function; or
(3) The injury results in death.

This limitation upon recovery for pain, suffering, mental anguish and “inconvenience” does not apply if the plaintiff was not an “owner, operator, maintainer or user” of an automobile. Hence it does not apply to an injured pedestrian unless at the time of the accident he owns or maintains an automobile, or is an operator or user in the sense that upon occasion he drives, uses, or has driven or used an automobile on the roadways of this state. In this special respect, one who “uses” an automobile (e. g., a passenger) is not a “user” unless he is a named insured in a policy with BRB coverage or is covered as a member of the named insured’s household. Nor does it apply if either the injured claimant or the person against whom his claim is asserted has rejected it.

KRS 304.39-060(2)(a) and (b) lack some degree of clarity, partially because, it is said, subsection (b) was lifted out of context from the Florida statute. Apparently there has been some thought that KRS 304.39-060(2)(b) not only restricts recovery for pain, suffering, mental anguish and “inconvenience” but also limits it to those items of damage, thus eliminating, for example, the element of destruction or permanent impairment of earning capacity. But we see nothing to call for such a construction. Read carefully in this aspect, the statute says only that unless the threshold requirement is satisfied there can be no recovery of these particular, enumerated elements of damage. • If the threshold is met, there is no limitation on the kind or amount of damages recoverable over and above the BRB paid or payable to the plaintiff.

Factual questions vital to a determination of whether and to what extent tort limitations apply in any given litigation must, of course, be raised by the pleadings, and presumably are subject to trial by jury. Which party must plead what, and bear the burden of proving it, is a mundane detail of importance, we suppose, only to judges and practitioners of the art of litigation, since it appears thus far to have escaped attention all around. In the absence of legislative amendment to supply the deficiency it will just have to be hammered out on a case-by-case basis.

4. Option to reject.

Any person may reject the limitation of his tort rights and liabilities on a written form prescribed by the Department of Insurance. The natural parent or official guardian may exercise this option for a person under legal disability, but in no event is the person under disability deemed to have accepted the limitation until the expiration of six months from the time the no-fault law would otherwise have become applicable to him. Once filed, a rejection is good for five years from date of its execution but may be revoked at any time. The owner or operator of a motorcycle may separately reject for that particular vehicle, while otherwise accepting the benefits and limitations of the no-fault law.

A person involved in an accident who does not have BRB insurance but does have the required amount of tort liability coverage (KRS 304.39-110) is deemed to have rejected limitation of his tort rights and liabilities for that particular accident.

Provision is made for notice and explanation of the rejection option to all holders of automobile insurance.

5. Exceptions.

A person whose injuries arise out of the use or maintenance of an automobile he has converted is disentitled to BRB or added reparation benefits from any source other than an insurance policy under which he has such coverage as an insured. A person injured in the course of attempting intentionally to injure either himself or another person is disentitled to such benefits from any source, as are his survivors if he dies.

6. Statute of limitations.

An action for tort recovery not foreclosed by KRS 304.39-060 must be commenced within two years after the injury or death or after the last payment of no-fault benefits, whichever is later. This provision remains subject to KRS 413.170(1), which extends the limitation period for infants and persons of unsound mind. Limitations on actions for no-fault benefits vary from one to four years after the accident or after the last payment of benefits, but are not pertinent to this inquiry except for KRS 304.39-230(5), which provides as follows:

“If a person entitled to basic or added reparation benefits is under legal disability when the right to bring an action for the benefits first accrues, the period of his disability is a part of the time limited for commencement of the action.”

7. Mandatory rate reduction.

A showcase feature of the act is that for at least one year beginning on July 1, 1975, the rates for minimum bodily injury liability coverage plus BRB and uninsured motorist coverage must be decreased by not less than 10% from the pre-existing rates for the same bodily injury coverage plus uninsured motorist and $1,000 per person medical expense coverage. It is of interest here only because it does not apply to any policy under which a person who would otherwise be entitled to BRB has rejected the limitations on his tort rights and liabilities.

Almost half the states have enacted no-fault insurance laws of one kind or another. Five courts of last resort have decided constitutional challenges. The Illinois act was declared invalid on grounds not applicable to this case. The personal injury portion of the Florida act was found valid in all respects except for the threshold criteria based on bone fractures, which were held discriminatory. This background information has significance to the controversy now before us only because most of the main issues raised here were discussed and decided in one or more of the other cases. None of them, however, involved the precise question presented by Sec. 54 of the Kentucky Constitution, which reads as follows:

“The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.”

If the act meets the test of that provision (and we think it does), there can be no serious doubt that Secs. 7 (right of trial by jury), 14 (access to the courts) and 241 (recovery for wrongful death) also are satisfied. If one has no right of action the guaranties of Secs. 7 and 14 can have no application. If, moreover, the Sec. 54 argument is overcome on the theory of implied consent, which obviously is the keystone of the act’s validity, then it would seem that the due process and equal protection arguments should fall by the same sword, because a public policy sufficient to justify an implied waiver of one constitutional protection ought to provide ah equally reliable basis for the implied waiver of other constitutional protections that are of no higher value in the context of the given circumstances. Hence the focus of our analysis in this case is directed mainly at the Sec. 54 question.

At the outset, the implied-consent theory must be recognized for what it is. As in the instance of contracts implied in law vis-a-vis contracts implied in fact, it necessarily stands on fiction rather than fact. But it is not thereby degraded or denigrated, because the venerated fictions of the law have been deliberately created to achieve what is right. The law simply declares that as done which ought to have been done. If implied-consent laws (or, for that matter, any other laws) had to depend on actual notice they could not exist. It seems to us, therefore, that the proper test of such a law is whether under all the circumstances, considering the public purpose sought to be accomplished and the nature and extent of detriment to the individual, it is reasonable for it to presume a consent where none exists in fact.

The argument of amicus curiae that the waiver of a constitutional right must be “knowing, voluntary and intelligent” rests, of course, on the premise that the acceptance of no-fault limitations depends on consent implied in fact. As we have said, however, no implied-consent law could survive on that fare. That the right “waived” under an implied-consent law is a constitutional right does not of itself conjure any special magic. Ordinarily, indeed, consent need be implied only because it is a constitutional right. Counsel’s notion that the familiar statutes under which a nonresident motorist is deemed to have appointed the secretary of state as his agent for service of process do not involve the loss of constitutional protections might, we suggest, be quickly dispelled by a review of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), and its subsequent history. Certainly the protection of an absent nonresident from a personal judgment rests upon the fundamental right of due process guaranteed by the 14th Amendment. If it were not so it would be unnecessary for the law to imply his acquiescence.

“Motor vehicles are dangerous machines, and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest the state may make and enforce regulations reasonably calculated to promote care on the part of all, residents and non-residents alike, who use its highways. . And, in advance of the operation of a motor vehicle on its highway by a non-resident, the state may require him to appoint one of its officials as his agent on whom process may be served in proceedings growing out of such use. . . . The difference between the formal and implied appointment is not substantial, so far as concerns the application of the due process clause of the Fourteenth Amendment.” Hess v. Pawlowski, 274 U.S. 352, 356-357, 47 S.Ct. 632, 633, 71 L.Ed. 1091 (1927).

Our views in this respect do not reflect a diminished conception of Sec. 54 as applied in Saylor v. Hall, Ky., 497 S.W.2d 218 (1973), Happy v. Erwin, Ky., 330 S.W.2d 412 (1959), and the earlier opinions they affirm. The statutes considered in those cases did not purport to imply consent of the persons whose rights were affected, and we do not say here that they could validly have done so.

In Wells v. Jefferson County, Ky., 255 S.W.2d 462 (1953), this court held valid, against the contention that it violated Sec. 54, an amendment of our Workmen’s Compensation Act providing that an employe is deemed to have accepted the act unless and until he files a written notice of rejection with his employer. There are differences, of course, between that case and this, but the fundamental similarities far outweigh the differences. Those of us who join in this opinion cannot fairly distinguish it or avoid it by declaring it unsound. There is no doubt that much reliance was placed upon its integrity as a guiding precedent by the members of the General Assembly in drafting and enacting the no-fault law.

The responsibility of pronouncing life-or-death judgment on a piece of legislation so important as this cannot be discharged by any exercise of legal virtuosity. It would be all too easy to tear it down and look brilliant in the execution, but it is the duty of the court to save it if possible, and not to condemn it if there is a reasonable doubt of its unconstitutionality. Cf. Harbison v. George, 228 Ky. 168, 14 S.W.2d 405, 406 (1929). We resolve any such doubt in its favor.

As one of the briefs suggested, the arguments have tended to obscure the fact that from the standpoint of what the individual gives up, this really is a rather innocuous law. The compulsory insurance aspect, about which there seems to be no legal question, is likely to rip off more skin than the limitation of tort rights. Considering the modest extent to which the scope of tort recovery is constricted, the no-fault law gives much more to the many than it takes from the few.

The object of our sharpest concern is the impact of the law upon infants and other persons under disability, but in this respect a misplaced emphasis has been placed on the right of rejection. The argument that a parent waives his child’s right to sue by failing to exercise the right of rejection for him misses the point that it is the child’s act in using an automobile, or the parent’s act in causing or permitting him to do so, that subjects him to the limitations imposed by the no-fault law. As expressly stated in KRS 304.39-060(1), implied consent to the law hangs on one’s use of the highways, not on the failure to reject, which really is in the nature of an added attraction.

Parents and custodians of persons under disability necessarily have the liberty to exercise or forego many options affecting the rights and welfare of the child or ward. A next friend may file suit for an infant, waive trial by jury, and lose the case, all without let or hindrance. What he can or cannot do depends very largely on the gravity and likelihood of harm to which the child is thereby exposed. In the field of criminal law much protection has been thrown about the juvenile, but the policy considerations there cannot reasonably be equated with those involved in this ease. Usually, parents can be depended upon to do what they think best for their children, that being the generally reliable instinct of mankind. Considering the no-fault benefits that are disclaimed by a rejection, who is to say whether its exercise in a child’s behalf gives him more or takes more from him?

This point was settled in the context of the workmen’s compensation law by Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648, 653 (1916). Since that time the rights of children have come to be regarded with far greater solicitude, but it is still a prerogative of the state to define the authority of a parent to act for a child.

Being of the opinion that a state’s undoubted authority to place conditions upon the use of its highways includes the power to require liability insurance and the acceptance of a no-fault system of loss distribution, we do not regard the option to reject as indispensable to the legal presumption that any person, sui juris or not, who uses the highways accepts those conditions, particularly in view of the obvious benefits to himself. Whether the option to reject is exercised does not involve the waiver of a constitutional right. If, on the other hand, the law did not provide for its exercise in some manner for a person under disability there might be real cause for a claim of discrimination.

Heretofore our statutes of limitation have been extended to permit one who is a minor when a right of action accrues in his behalf to bring suit within the same period of time after he reaches his majority. To the extent that KRS 304.39-230(5) may provide otherwise it is claimed to be invalid. There is no authority, however, for a conclusion that such a saving provision is a constitutional necessity. It is a matter of legislative choice.

Aside from the Sec. 54 question, enough has been written by other courts on the due process and equal protection issues raised by this type of legislation to obviate any need for further extension here. We could add nothing to the fine opinions of Mr. Justice Reardon in Pennick v. Cleary, 360 Mass. 1, 271 N.E.2d 592 (1971), and Chief Justice Fatzer in Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974). Suffice it to say that in our opinion these constitutional protections are not violated.

The brief for appellee Kentucky Association of Trial Attorneys contends that the act does not apply to motor vehicles engaged in the transportation of persons for hire, and thereby violates Const. Sec. 59, which forbids special legislation where a general law can be made applicable. This argument is based on the exclusion contained in KRS 186.020. Such vehicles are, however, covered by KRS 186.050, so in fact they are not excluded. The same constitutional point is made with reference to KRS 304.39-080(4), which excludes governmental agencies from the compulsory insurance requirement. This is not an unreasonable classification and therefore does not offend Sec. 59.

The brief for amicus curiae American Insurance Association suggests that none of the complaining parties had standing to litigate the rights of nonresident motorists and workmen’s compensation carriers. We agree.

In conclusion, it should not escape the attention of any of the litigants and other persons and parties interested in this case that essentially, much of the argument has amounted to little more than a questioning of the public policy on which the General Assembly based its action. It is elementary that the legislative branch of government has the prerogative of declaring public policy and that the mere wisdom of its choice in that respect is not subject to the judgment of a court. To those who may think, for example, that this law does not rest on considerations of policy comparable with those underlying the workmen’s compensation law, the answer is that the question has been settled by the only body having the legal right to make that judgment.

Nothing we have said here is intended to leave an inference that those of us joining in this opinion actually doubt the wisdom or soundness of the legislative action. The General Assembly has faced up to the responsibility, never easy under a constitution adopted before the day of carnage on the highways, of adapting the law to the exigencies of the 20th century. It is difficult for us to believe that those great men, conservative as they were, who labored so diligently in bringing forth that constitution, but nevertheless misjudged the efficacy of the amendment process, would really have it otherwise.

To the extent that it resolves issues the parties had no standing to raise, the judgment should be modified. As so modified it is affirmed.

All concur except for JONES, LUKOW-SKY and STERNBERG, JJ., who dissent.

REED, Chief Justice

(concurring).

I concur in the majority opinion because I am unable to make an honest intellectual distinction between the constitutional construction made by this court in Wells v. Jefferson County, Ky., 255 S.W.2d 462 (1953), and that made by the majority opinion.

The Wells decision squarely held that Sections 54 and 241 of the Kentucky Constitution were not offended by our present Workmen’s Compensation statute which presumed acceptance of the Workmen’s Compensation Law by an employee’s failure to reject where an opportunity for affirmative rejection was afforded. In all frankness, I seriously question the correctness of that decision, but I am not prepared to declare the entire Workmen’s Compensation Law unconstitutional in view of the reliance placed on the decision. Although I am mindful of the judicial oath to support the Constitution of this State regardless of personal judgments concerning the wisdom of some of its provisions, I am, nevertheless, also so influenced by the legal principles of stability and predictability of judicial constitutional constructions that I am unable in this case to ignore a constitutional construction made by this court and on which affected parties, including the legislature, should be able to rely.

I am also impressed that by reason of the breadth given to state power in attempting to control conditions on its highways there is ample policy reason in the instant case to obey and respect the constitutional construction made in the Wells case.

My brother, Sternberg, has filed a separate dissenting opinion in which he undertakes to distinguish the Wells case. In my opinion the attempted distinction confirms rather than weakens my conclusion. In the Wells case, the question was whether a waiver of constitutional rights may be effected by means of the failure of the employee to elect affirmatively to retain those rights. Justice Sternberg appears to draw the distinction that Wells presented a case between contracting parties. ■ The present statute deals with a contract of insurance. I utterly fail to see any distinction in the applicable principle. Furthermore, Justice Sternberg’s dissent adopts the position that the operation of motor vehicles on public roads is a privilege rather than a right. This distinction has been recently, repeatedly rejected by the United States Supreme Court. The proper use of a highway has today become as much of a right as is the right to earn one’s living. Therefore, I am unable to follow this line of reasoning.

I join in the majority opinion only with the distinct understanding, however, that the wisdom of the applicability of the Wells doctrine to other areas is under serious scrutiny by this court as presently constituted, and any reliance upon that doctrine in other areas might turn out to be misplaced so far as I am concerned. It is useless, however, to speculate further in this regard because courts only speak when properly spoken to in the context of a contested case.

LUKOWSKY, Justice

(dissenting).

Today, the majority eviscerated Sections 14 and 54 of the Constitution of the Commonwealth of Kentucky with the scalpel of judicial fiat. The importance of this necropsy makes it necessary that I publicly express my views.

KRS 304.39-060 provides, in part:

“(2)(a) Tort liability with respect to accidents occurring in this commonwealth and arising from the ownership, maintenance, or use of a motor vehicle is ‘abolished’ for damages because of bodily injury, sickness or disease to the extent the basic reparation benefits provided in this subtitle are payable therefor, or that would be payable but for any deductible authorized by this subtitle, under any insurance policy or other method of security complying with the requirements of this subtitle, except to the extent noneco-nomic detriment qualifies under subsection (2)(b) hereof.
“(b) In any action of tort brought against the owner, registrant, operator or occupant of a motor vehicle with respect to which security has been provided as required in this subtitle, or against any person or organization legally responsible for his acts or omissions, a plaintiff may recover damages in toft for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease arising out of the ownership, maintenance, operation or use of such motor vehicle only in the event that the benefits which are payable for such injury as ‘medical expense’ or which would be payable but for any exclusion or deductible authorized by this subtitle exceed one thousand dollars ($1,000), or the injury or disease consists in whole or in part of permanent disfigurement, a fracture to a weight-bearing bone, a compound, com-minuted, displaced or compressed fracture, loss of a body member, permanent injury within reasonable medical probability, permanent loss of bodily function or death. Any person who is entitled to receive free medical and surgical benefits shall be deemed in compliance with the requirements of this subsection upon a showing that the medical treatment received has an equivalent value of at least one thousand dollars ($1,000).
“(c) Tort liability is not so limited for injury to a person who is not an owner, operator, maintainer or user of a motor vehicle within subsection (1) of this section.
“(3) For purposes of this section and the provisions on reparation obligor’s rights of reimbursement, subrogation, and indemnity, a person does not intentionally cause harm merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of harm.

Section 14 of the Constitution of the Commonwealth of Kentucky provides:

“All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

Section 54 of the Constitution of the Commonwealth of Kentucky provides:

“The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.”

In Ludwig v. Johnson, 243 Ky. 533, 49 S.W.2d 347 (1932) we said:

“It was the manifest purpose of the framers of that instrument (the constitution) to preserve and perpetuate the common law right of a citizen injured by the negligent act of another to sue to recover damages for his injury. The imperative mandate of section 14 is that every per-son, for an injury done him in his person, shall have remedy by due course of law.”
“It is insisted that this section of the Constitution (54) does not guarantee the continuation of the right of action theretofore existent, but merely applies to such causes of action as continue to exist, and prohibits the Legislature from limiting the amount of damages to be recovered for injuries resulting in death or for injuries to person or property so long as a right of action exists for such injuries, but does not prohibit it from abolishing the right of action.”
“When that section is read in connection with other sections of the same instrument, such as sections 14 and 241, the conclusion is inescapable that the intention of the framers of the Constitution was to inhibit the Legislature from abolishing rights of action for damages for death or injuries caused by negligence.”

In Saylor v. Hall, Ky., 497 S.W.2d 218 (1973) we said:

“Our state Constitution, however, has been held to prohibit the legislative branch from abolishing common-law rights of action for injuries to the person caused by negligence or for death caused by negligence.”

On numerous occasions we have indicated the importance of a person’s right to recover damages for pain and suffering. See, e. g., Ashland Coca Cola Bottling Co. v. Brady, 252 Ky. 183, 66 S.W.2d 57 (1933); Warfield Natural Gas Co. v. Wright, 246 Ky. 208, 54 S.W.2d 666 (1932). In Ashland-Coca Cola, supra, we felt compelled to state:

“The right to recover of a wrongdoer compensation or allowance looking toward recompense for pain and suffering caused by him has been everywhere recognized as a fundamental and cardinal principle of law, because it is naturally connected with all physical injuries and must be considered as a direct and proximate result.”

It is, therefore, as obvious as a “purple cow” that the Kentucky Motor Vehicle Reparations Act abolishes the tort action for pain and suffering for most accident victims in minor accident cases and is, consequently, unconstitutional unless these victims may be construed to have consented to •the application of the Act and waived their constitutional rights.

The method by which this consent or waiver is obtained is the following language from KRS 304.39-060.

“(1) Any person who registers, operates, maintains or uses a motor vehicle on the public roadways of this commonwealth shall, as a condition of such registration, operation, maintenance or use of such motor vehicle and use of public roadways, be deemed to have accepted the provisions of this subtitle, and in particular those provisions which are contained in this section.”

A person who wishes to retain his right to sue may do so only by affirmatively complying with the further provisions of KRS 304.39-060.

“(4) Any person may refuse to consent to the limitations of his tort rights and liabilities as contained in this section. Such rejection must be in writing in a form to be prescribed by the department of insurance and must have been executed and filed with the department at a time prior to any motor vehicle accident for which such rejection is to apply. Such rejection form together with a reasonable explanation thereof shall be furnished by the reparation obligor with each policy, to each prospective insurance applicant. Such rejection form shall affirmatively state in bold print that acceptance of this form of insurance denies the applicant the right to sue a negligent motorist unless certain requirements contained in the policy of insurance are met. Rejection by a person who is under legal disability shall be made on behalf of such person by his legal guardian or his natural parent. The failure of such guardian or a natural parent of a person under legal disability to file a rejection, within six (6) months from the date that this subtitle would otherwise become applicable to such person, shall be deemed to be an affirmative acceptance of all provisions of this subtitle. Provided, however, any person who, at the time of an accident, who does not have basic reparation insurance but has not formally rejected such limitations of his tort rights and liabilities and has at such time in effect security equivalent to that required by KRS 304.39-110 shall be deemed to have fully rejected such limitations within meaning of this section for that accident only.
“(5) Any rejection must be filed with the department of insurance and shall be for a period of five (5) years from the date of its execution unless revoked in writing. A copy of such rejection or revocation must be filed with each insurance company providing an automobile policy under which the individual is a named insured as defined in the policy.”

The argument is that we have approved the use of such a system of implied consent, acceptance and waiver of constitutional rights by holding the implied consent doctrine constitutional in relation to KRS 186.-565, which provides that a person’s driver’s license may be revoked if he refuses to take a chemical test to determine- the alcoholic content of his blood, breath, urine or saliva after he has been arrested for allegedly driving while under the influence of intoxicating beverages, Craig v. Commonwealth, Ky., 471 S.W.2d 11 (1971), and in relation to KRS 342.395, which provides that an employee, as a part of his contract of hiring, shall be deemed to have accepted all the provisions of the Workmen’s Compensation Act and be bound thereby unless he shall have filed written notice to the contrary with his employer, Wells v. Jefferson County, Ky., 255 S.W.2d 462 (1953).

Craig, supra, is inapposite since it does not. involve an implied consent to the waiver of basic constitutional rights specifically delineated in the constitution. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Wells, supra, does not control the situation presented here. The provision in the Workmen’s Compensation Act withstood attack only because it was aimed at eliminating the workman’s difficulty of proof of acceptance of the provisions of the act. The statute affected only the peculiar relationship of employer and employee by providing that acceptance of the act was a condition of the contract of hiring unless written out of the contract. It is notorious that every contract of hiring involves on both the part of the employer and employee a discussion of wages, hours, fringe benefits, terms and conditions of employment. In fact, these very matters are now, in the majority of cases, the subject of collective bargaining with labor unions and employers associations on a unit and even industry-wide basis. Dick v. International Harvester Company, Ky., 310 S.W.2d 514 (1958). While the rights involved are the same, the antecedent contractual nature of the relationship between tortfeasor and victim and the bargaining process restrict the applicability of Wells, supra, to the field of workmen’s compensation.

Persons who are under legal disability comprise a substantial part of the population of the Commonwealth of Kentucky. These persons are covered by the Act unless its provisions are rejected by his legal guardian or his natural parent and any failure of rejection for a period of six months is deemed to be an affirmative acceptance of the Act. This permits one person to waive specific constitutional rights of another person without the advice or consent of a court. Constitutional rights have always been cherished rights and neither the workmen’s compensation act nor the statute dealing with a chemical test for alcoholic content in the blood allows one person to waive the constitutional rights of another. In addition, the rights of persons under legal disability have always been carefully protected by our law. For example, the statute of limitations with respect to any cause of action does not begin to run against a person under a legal disability until the disability is removed. KRS 413.-170. Thus, if a child of age eight is injured by some negligent person the period of one year, KRS 413.140(a), in which he has to bring suit against the negligent person does not begin to run until the child reaches the age of legal majority. The child is protected until either he is old enough to make his own decision about whether to bring suit or, if suit is brought earlier in his behalf by a guardian or next friend, its prosecution and settlement is supervised by a court.

It is a fact of judicial history that from 1953 to date there has been an increasing concern for the protection of fundamental constitutional rights. The Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, illuminated and eliminated the evils of the implied acceptance, implied consent, implied waiver approach when it said:

“Such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court’s pronouncements on waiver of constitutional rights. The Court has defined waiver as ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466, 146 A.L.R. 357 (1938). Courts should ‘indulge every reasonable presumption against waiver,’ Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177,1180 (1937), and they should ‘not presume acquiescence in the loss of fundamental rights.’ Ohio Bell Tel. Co. v. Public Utilities Comm’n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093, 1103 (1937). In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), we held:
‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not waiver.’ Id., at 516, 92 S.Ct. 2182, 8 L.Ed.2d at 77.
“The Court has ruled similarly with respect to waiver of other rights designed to protect the accused. See, e. g., Miranda v. Arizona, 384 U.S. 436, 475-476, 86 S.Ct. 1602, 1628-1627, 16 L.Ed.2d 694, 724, 10 A.L.R.3d 974 (1966); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).”

To those who would attempt to construct an artificial distinction between criminal vis-a-vis civil constitutional rights it is enough to say that the constitutional rights of persons who have conducted themselves so as not to .be charged with a' crime are also worthy of protection.

To apply a different standard here would, by implication, authorize the legislature to write a statute which would abolish or limit recovery in actions for medical and legal malpractice via an implied waiver based upon the failure of the patient or client to notify the physician or lawyer and the hospital or courthouse and the Director of the Department of Health or the Chief Justice of his rejection of the provisions of the act and place our “nihil obstat” on the Good Samaritan Act, KRS 411.148.

To the argument that the doctrine of implied consent is supported by the constitutionality of the Non-Resident Motor Vehicle Operator’s Act, KRS 188.020, the Long Arm Statute, KRS 454.210, and similar legislation, suffice it to say that those Acts open rather than close the courthouse door.

The implied consent, implied acceptance, implied waiver doctrine does not meet constitutional standards. Consequently, the entire Act is unconstitutional and void. KRS 304.39-340(2).

I would reverse the judgment of the Franklin Circuit Court and remand the cause for the entry of judgment consistent herewith. The majority having reached a contrary conclusion, I respectfully dissent.

JONES and STERNBERG, JJ., join in this dissent.

STERNBERG, Justice

(dissenting).

The majority opinions which uphold the constitutionality of the norfault insurance law are dangerously bottomed on the case of Wells v. Jefferson County, Ky., 255 S.W.2d 462. Undoubtedly, much has been written and much more could be written eulogizing the Kentucky Constitution and deriding its unsavory mastication. Regardless of my strong feelings in that respect, it is not my purpose at this time to do either. It is only my wish to analyze the Workmen’s Compensation Act in its relation to employer and employee; to analyze the effect of the 1952 amendment which gave rise to the Wells case, supra; and to analyze the true legal issue which it presented and determined. Wells does not constitute an un-surmountable obstacle which shields no-fault from a successful constitutional attack.

To get to the real issue in Wells, we must consider the purpose of workmen’s compensation. In Morrison v. Carbide, 278 Ky. 746, 129 S.W.2d 547, in discussing the purpose of the Workmen’s Compensation Act, we said:

“For a proper understanding of the questions presented for determination it is necessary to look not only to the express provisions of the compensation law but to the causes that led to its enactment, its spirit and purposes and the ends sought to be attained. A lengthy discussion of those matters would be mostly unnecessary restatement of a subject already thoroughly covered by courts and text writers. It is sufficient to say that our compensation law is neither cumulative nor supplemental to the common law with respect to personal injuries growing out of industrial occupations. It practically abolished the common law relating to the subject of tortious liability as between the employer and the employee and that abolition carried with it the harsh and as often applied, inhuman rules of assumed risk, fellow servant and contributory negligence which an old school of thought and economics had engrafted into the common law. It was in effect a compromise between the employer and the employee to avoid the expense, vexatious delay and uncertainty of actions at law; and for its superior advantages to them, both surrendered some rights under the common law. However, it was enacted not only for their benefit but in the public interest since the costs of maintenance of courts fell upon the public and the injured, indigent employee and his dependents often became public charges. Under the modern, more humane and enlightened conception, growing out of the long controversy and thought, and embodied in the act, liability is no longer dependent upon negligence, tortious conduct, contributory negligence or assumed risk, but as between an employer and employee who bring themselves within the terms of the act, the former, however blameless he may be, is nevertheless liable to the employee for accidental injury arising out of his employment. By the act the state has declared a public policy the wisdom of which is no longer a matter of doubt. It provides a method of speedy, inexpensive determination of the rights and liabilities as between the employer and the injured employee who come within its provisions and clearly bespeaks a purpose and intention to make the method and procedure prescribed exclusive.”

We must bear in mind that prior to the 1952 amendment the contract of employment between the employer and the employee included as a part and parcel of the contract the workmen’s compensation law only, and only, if the employee in writing accepted the provisions of the Act. The 1952 amendment made the Workmen’s Compensation Act part and parcel of the contract of employment unless, and only unless, the employee in writing rejected the Act. The law considers the employer and the employee as dealing at arms length. The employer can hire on terms and conditions which make the Workmen’s Compensation Act a part of the contract of employment. The employee can accept employment on the terms and conditions that make the Workmen’s Compensation Act a part of the contract or he can refuse such employment. By acceptance of work the employee makes all of the provisions of the workmen’s compensation statute a part of his contract of employment.

In Wells, supra, we said:

“ * * * The question now before us is whether a waiver of the constitutional rights may be effected by means of the failure of the employe to elect affirmatively to retain those rights.”

In other words, in effect we said in Wells that the question before us was whether a waiver of the constitutional rights may be effected (in the contract of employment) by means of the failure of the employee to elect affirmatively to retain those rights. By Wells this court made the Workmen’s Compensation Act a part of the contract of employment, which thereby contained a waiver of constitutional rights, unless the employee by a writing elected to retain them.

In the case at bar, there is no contract between the Commonwealth of Kentucky and any one relative to the use of Kentucky highways. The operation of a motor vehicle on the highways of this Commonwealth is a privilege and not a right. Sturgill v. Beard, Ky., 303 S.W.2d 908; Commonwealth v. Mitchell, Ky., 355 S.W.2d 686. The state is not without limitation, however, even in the exercise of its police power in controlling the use of its highways. In Commonwealth v. Mitchell, supra, we said:

“Our court has likewise held that to operate a motor vehicle on a public road is not a natural or unrestricted right but rather is a privilege granted by the statute and subject to reasonable regulation under the police power of the state. * * *7?

It will serve no useful purpose to further delineate the distinction in the case at bar from the Wells case. The difference is apparent.

As I read the majority opinions, in the absence of Wells this court would be constrained to say that the provisions of the no-fault insurance law run afoul of our constitution. The Commonwealth, as well as its citizens, is limited by the constitution;

and without Wells as a shield, it could hardly be contended that no-fault is constitutional.

I have great fear and much misgiving of the impetus that the majority opinions in this case will give to other and similar-type legislation, controlling by implied consent each and every profession, calling, or endeavor. To me, the encroachment of implied consent into our judicial philosophy is a monster, so great that its disastrous effect is unpredictable.

Be it ever remembered that the majority opinions of this court upholding the constitutionality of the no-fault insurance law came about through no fault of the writer of this dissent.

I have unequivocably concurred in the minority opinion which was written by Justice Lukowsky, and still do; but having such deep apprehensions of the results of implied consent philosophy being injected into legal jurisprudence, I feel it necessary to write this separate dissenting opinion.

      . Ch. 385 (HB 314), Acts of 1974, carried into the statutes as KRS 304.39-010 to 304.-39-340, incl., and KRS 304.99-050. It becomes effective on July 1, 1975.

      . According to the record in this case some 35% of the motor vehicles now being operated in Kentucky are uninsured.

      . The statutory term is “motor vehicle,” defined as a vehicle required to be registered under KRS Ch. 186. KRS 304.39-080(5) and 304.39-020(7). We use “automobile” in that sense throughout this opinion.

      . (Including operation by another with his permission.)

      . KRS 304.39-080, 304.39-090, 304.39-110. Insurance companies doing business in this state are required to include both coverages in all policies (wherever issued) covering liability arising out of ownership, maintenance or use of an automobile while in this state. KRS 304.39-100(2).

      . KRS 304.99-050.

      . Property damage is not covered.

      . BRB is paid by the insurer of the vehicle occupied by the injured person, or, if he was a pedestrian, by the insurer of the vehicle by which he was struck, or, if neither vehicle had such coverage, by the issuer of any policy under which the injured person is entitled to BRB. KRS 304.39-050. If there is no applicable BRB coverage, payment is made through an “assigned claims plan.” KRS 304.39-160.

      . KRS 304.39-030.

      . KRS 304.39-060.

      . KRS 304.39-060(6) and (7), 304.39-140(5).

      . It is less awkward to refer to it in the singular rather than plural.

      . KRS 304.39-020(2) and (5).

      . (Per person, per accident.)

      . KRS 304.39-130, 304.39-020(2). Increased coverage can be purchased. Such coverage over and above BRB is called “added reparation benefits.” KRS 304.39-140, 304.39-020(1).

      . KRS 304.39-060(2)(a) “abolishes” tort liability only to the extent that BRB is payable (or would be payable in the absence of a policy deduction).

      . These are defined in KRS 304.39-020(5)(a).

      . We shall not undertake to discuss whether or to what extent “inconvenience” is a permissible element of damages.

      . We leave open the question of how much operation or use will suffice to make one an operator or user who is fully subject to no-fault limitations on his rights of recovery, except to say that a person who has not operated or used an automobile after July 1, 1975, the effective date of the act, could not constitutionally be deemed to have accepted such limitations.

      . See KRS 304.39-020(3)(b) and (4) and KRS 304.39-050(1) for the provisions leading us to this construction.

      . KRS 304.39-060(7) and (8).

      . Fla.Stat. § 627.737(2).

      . The words, “except to the extent noneco-nomic detriment qualifies under subsection (2)(b) hereof,” at the end of KRS 304.39-060(2)(a) are a meaningless appendage, since subsec. (2)(a) does not purport to affect recovery for noneconomic detriment anyway.

      . KRS 304.39-060(4).

      . KRS 304.39-060(5).

      . KRS 304.39-060(9).

      . KRS 304.39-060(4). Whether a carload of completely uninsured nonresidents can constitutionally be deemed to accept the no-fault limitations by crossing into this state on one of its highways is a question none of the parties had standing to raise. We leave it to abide the event.

      . KRS 304.39-060(6).

      . KRS 304.39-190.

      . KRS 304.39-200.

      . KRS 304.39-230(6).

      . KRS 304.39-330(1).

      . Since BRB coverage extends to certain members of the named insured’s household, cf. KRS 304.39-020(3), this means that the reduction will not apply if any one or more of the persons so covered exercises his option to reject.

      . KRS 304.39-330(2).

      . See Pinnick v. Cleary, 360 Mass. 1, 271 N.E.2d 592 (1971); Grace v. Howlett, 51 IU.2d 478, 283 N.E.2d 474 (1972); Opinion of the Justices, 113 N.H. 205, 304 A.2d 881 (1973); Lasky v. State Farm Insurance Company, Fla., 296 So.2d 9 (1974); and Manzanares v. Beii, 214 Kan. 589, 522 P.2d 1291 (1974).

      . 296 So.2d at pp. 20, 21. The Florida law, however, is not based on implied consent.

      . (For example, due process, equal protection, access to the courts, and the right to jury trial.)

      . Whatever may be the involvement of Sec. 241 in this controversy, it is extremely tenuous.

      . Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      .That the scope of any specific constitutional privilege is defined by the values it was intended to protect is made clear in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

      . Cf. KRS 188.020.

      . Ch. 82, Acts of 1952, now KRS 342.395.

      . So may an infant’s personal injury claim against a city be lost by failure of someone to give the notice required by KRS 413.170. Galloway v. City of Winchester, 299 Ky. 87, 184 S.W.2d 890 (1944).

      . KRS 413.170(1).

      . Cf. Reeves v. Deisenroth, 288 Ky. 724, 157 S.W.2d 331, 138 A.L.R. 1493 (1941).

      . The 1970 Federal Census discloses that of Kentucky’s population of 3,219,311 there were 1,114,042 persons under the age of 18 years. Kentucky’s Department for Human Resources reports that during fiscal year 1974 8,179 persons were determined to be incompetent in judicial proceedings.


source: Caselaw Access Project

author: REED, Chief Justice.

license: Public Domain

text:
    Beatrice B. HOLTON, Appellant, v. Dr. Harry H. PFINGST, Appellee.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.
    Rehearing Denied Feb. 6,1976.
    William A. Miller, Louisville, for appellant.
    John T. Ballantine, Ogden, Robertson & Marshall, Louisville, for appellee.
   REED, Chief Justice.

This is a medical malpractice action. The appellant, Beatrice B. Holton, sued the ap-pellee, Dr. Harry H. Pfingst, an ophthalmologist, for his alleged failure to properly disclose to her the risks and hazards involved in a proposed surgical procedure. The trial judge directed a verdict in favor of the physician at the conclusion of Hol-ton’s evidence. From the subsequent judgment dismissing her action, Holton appeals. We affirm the judgment because, in our view, her evidence was insufficient to permit a jury to impose liability upon the physician.

In 1960 Holton employed the services of Pfingst for an eye problem which resulted in his performing an operation upon her for a detached retina. The operation was successful. Ordinary acceptable medical practice was followed in the operation, including the placement of a hollow polyethylene ring or tubing around the eye as a part of the operative procedure. Apparently physicians later discovered that this type tubing creates a problem of erosion through the sclera (the white portion of the eye which is a membrane). In procedures thereafter a softer type plastic was used.

According to Holton, her daughter advised her that the eye which had been operated on appeared to have deviated a little. She then visited Pfingst in November 1965. On this occasion Pfingst told her that she had had a polyethylene ring placed around her eye and that it should be removed. According to her, Pfingst advised her on this occasion that it was not an emergency, that she would spend possibly two days in the hospital, and that the procedure would be performed under a local anesthetic.

This surgical procedure, although properly performed, was unsuccessful. When the first piece of tubing was removed causing the loss of vitreous fluid, a hemorrhage occurred inside the eye which finally resulted in loss of the sight of the eye. Bacteria inside the tubing set up an infection when the tubing was cut. Later the eye was enucleated.

According to Pfingst, he made a careful examination when Holton last consulted him. It is uncontradicted that everything Pfingst did in his examination and diagnosis was in accord with acceptable medical standards. Pfingst, who was called on cross-examination as Holton’s sole expert evidence, testified that from his examination it was his conclusion that the tubing had not perforated. He stated he had done about a dozen previous tube removal operations but in none of them had there been a perforation. According to Pfingst, good medical practice called for the removing of the tubing under the circumstances in order to prevent erosion into the eye. He concluded from his examination that there was not an erosion into the sclera and was of that impression until the operation revealed otherwise.

Holton argues that her evidence was sufficient to create an issue of fact for the determination of the jury on the “questions of informed consent and false and fraudulent misrepresentation” and that the trial judge erred in directing a verdict in favor of Pfingst.

Although the briefs address themselves to legal principles that are usually discussed in cases where a patient sues a physician for injuries resulting from medical treatment such as the character and quantum of evidence required and on whom the burden of proof or the duty to explain should rest, our consideration impels us to the view that the basic issue of determination of liability cannot be resolved by resort to the pigeonholing analogies that courts have used in the decision of many of the cases.

Holton asserts that Pfingst was subject to liability to her because either he violated a fiduciary relationship existing between physician and patient when he failed to disclose to her that which he should have disclosed, or his conduct was fraudulent in that he obtained her consent to an operative procedure by failure to disclose a risk or hazard which he knew to exist and about which he knew she was ignorant, or he failed to observe a standard of conduct required of physicians under the same or similar circumstances in that he failed to inform her of the risks and hazards of the anticipated medical procedure to the same degree as physicians of ordinary prudence and skill would have done. In any event, it would appear that the ultimate issue is whether, upon the evidentiary showing presented, a jury should be permitted, if it chooses to do so, to impose liability upon the physician for some act or omission to act upon his part during the existence of the relationship between the parties.

The issue sometimes arises where the physician is aware that the patient does not understand the nature of the operation or the risk of undesirable consequences involved in it. “Where there is active misrepresentation, this has been held to invalidate the consent, so that there is battery; and the same has been held where there has been mere nondisclosure of consequences which the surgeon knew to be certain to follow. There have, however, been only a few decisions finding battery where there was failure to disclose only a known risk of the treatment.” W. Prosser, Handbook of the Law of Torts, 105-106 (4th ed. 1971).

“The greater number of decisions now regard the failure to disclose a mere risk of treatment as involving a collateral matter, and negligence rather than intent, and so have treated the question as one of negligent malpractice only, which brings into question professional standards of conduct.” Prosser, supra at 106.

It is difficult to logically analogize the situation with traditional concepts of assault and battery. The physician intends no harm and the relationship itself inherently contemplates contact rather than trespass. The same conditions are present when an analogy is attempted to the law of fraud and deceit. In most instances the object of the actor (physician) is to benefit, alleviate or cure rather than to take advantage. Hence, we are persuaded that the prevailing view to the effect that the action, regardless of its form, is in reality one for negligence in failing to conform to a proper professional standard is the soundest approach. See Prosser, supra at 165.

If this prevailing view is applied to the so-called doctrine of “informed consent,” about which so much has been written in the medical malpractice texts and academic literature, the issue then appears as a policy question concerning the extent and kind of evidence that should be required before a jury is permitted to weigh and evaluate the proven facts and determine liability or exoneration.

Despite the current trend in the law to impose strict liability on manufacturers and sellers of products for the protection of consumers, the law has, nevertheless, continued to afford the medical profession and other learned professions a privilege which it has ordinarily refused to other groups even before the strict liability trend, and that is the freedom to set their own legal standards of conduct. The policy justification implicitly advanced is the respect which the courts have had for the learning of a fellow profession accompanied by reluctance to overburden it “with liability based on uneducated judgment.” Prosser, supra at 165.

Some courts categorically require the patient to produce expert testimony as to what disclosure of risks or hazards should be made. Other courts hold that experts are unnecessary and that lay witness testimony can establish a submissible case of failure to disclose a risk or hazard of treatment which a physician knew or should have known. See 61 Am.Jur.2d, Physicians, Surgeons, Etc., Sec. 154, p. 9 (Supp.1975). Other courts have ordinarily required expert evidence by the plaintiff on the issue of the extent of disclosure required except in those instances where the court determined that the necessity of disclosure of the risk involved was “too clear to require expert medical testimony.” Am.Jur., supra. Some of the text discussions although unsupported by decided cases have advocated a shift of burden approach whereby if the patient produces evidence of a failure to disclose a particular risk or hazard, then the burden shifts to the physician to excuse the failure by proof of professional standards which would seek to establish disclosure was either not required or was regarded as not in the best interest of the patient under the peculiar fact situation.

In the instant case, we are persuaded that it is unnecessary to determine whether expert evidence should be required in all instances where the claim is lack of informed consent to medical treatment. It is our view that the cases considering the extent of required disclosure have failed in many instances to relate the requirement to the overall policy consideration. If it is the law, and it surely is, that a physician ordinarily is not liable for an honest mistake in judgment, when he follows acceptable medical standards for examination and diagnosis and treatment, then the extent of disclosure relevant to securing the patient’s consent must be evaluated in terms of what the physician knew or should have known at the time he recommended the treatment to the patient.

In the present case, it is undisputed that the physician’s examination and diagnostic procedures were in accordance with acceptable medical practice at the time he made them. He advised his patient, based on his medical judgment, as a result of his examination and diagnostic procedures. There is no evidence, lay or expert, that he failed to disclose that which he knew or should have known. His conduct was such that giving the plaintiff’s evidence all favorable inferences to her that could be drawn from it, he was guilty, if anything, of only an honest mistake in judgment. In our view, in such an instance when the necessity of the relationship is considered and the present status of medical science is weighed, the physician should not be subject to liability. We have concluded that the trial court correctly directed a verdict in favor of the physician in this case.

The judgment is affirmed.

REED, C. J., and CLAYTON, JONES, PALMORE, STEPHENSON and STERN-BERG, JJ., sitting.

All concur.


text:
    CITY OF OWENSBORO, Kentucky, et al., Appellants, v. FIRST U. S. CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 31, 1975.

      Hugh D. Moore, Richard D. Gilliam, Jr.-, Gilliam & Moore, Owensboro, for appellants and cross appellees.
    Wells T. Lovett, Lovett, Kusch & Wible, Owensboro, for appellees-cross appellants.
    Kenneth N. Ragland, Calhoun, for appel-lee Bill F. Sutton.
    Wilson, Wilson & Plain, Owensboro, for appellee Irby Seay d/b/a Irby Seay Engineers.
   REED, Chief Justice.

The issue for decision is the proper statute of limitations applicable to a claim by a purchaser of securities against the seller that the sale was induced by actionable misrepresentation. The circuit court held that the two-year limitations section of the Kentucky Blue Sky Law, KRS 292.-480(3), applied to the claim asserted and that the action was barred. We agree for the reasons later stated.

Appellants, plaintiffs in the court below, sued the defendants-appellees concerning the purchase of certain bonds. Plaintiffs alleged that defendants “by virtue of written representation known to the defendants to be false and fraudulent but which plaintiffs believed to be true and upon the truthfulness plaintiffs relied, induced the plaintiffs to purchase from the defendants, First U. S. Corporation, certain bonds.” (Brief for Appellant, 2). The action was instituted less than five years but more than two years from the date of sale. Later, by amended complaint, other defendants were added. The amended complaint, although filed more than five years after the date of sale, alleged that the actionable misconduct of these additional defendants “was discovered by the plaintiffs in the winter of 1965, less than five years before the amended complaint bringing in the additional parties was filed.” (Brief for Appellant, 3). The trial judge dismissed the plaintiffs’ action on the ground that the two-year period of limitations contained in the Kentucky Blue Sky Law (KRS 292.480(3)) barred the plaintiffs’ claims.

The plaintiffs concede that the trial judge was supported by precedent on which he relied. The case of First State Bank of Pineville v. Slasher, 267 Ky. 190,101 S.W.2d 661 (1937), construed the Kentucky Blue Sky Law as enacted in 1932, in an action against a bank for fraud in the sale of worthless bonds in violation of the Blue Sky Law, to bar the action by its two-year period of limitations as against the purchaser’s contention that the action was governed by general statutes of limitations applicable to actions for relief on the ground of fraud.

In Slusher the court stated that our Blue Sky Law provided a remedy for the purchaser when he was induced by misrepresentation to purchase securities that are subject to the provisions of the law. The court remarked that the Legislature had seen fit to limit the limitations period to two years and prescribed no saving clause creating any exception. The court also said that although the statute created new remedies such as the right to rescind the sale for a failure to register the securities sold, the statute also provided a remedy where the purchaser was induced to purchase by misrepresentation.

The civil remedies section of the Blue Sky Law, KRS 292.480(1), by its terms, applies to any person who “offers or sells a security by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made in the light of the circumstances under which they are made not misleading (the buyer not knowing of the untruth or omission) . . . .” That language precisely describes the gist of the plaintiffs’ action in this case. Although there are no recitations in the Kentucky Blue Sky Law that its remedies are to be construed as additional to any other remedies provided by law, as is true in the Blue Sky Law enactments of some other states, there is a declaration in the Kentucky Blue Sky Law, however, that nothing in its provisions limit the power of the state to punish any person for any conduct which constitutes a crime by statute or at common law. KRS 292.991(3).

Although plaintiffs severely criticize the court’s reliance in the Slusher holding upon an earlier case, Thomas v. Fidelity & Casualty Co. of New York, 258 Ky. 360, 80 S.W.2d 8 (1935), nevertheless, they have afforded us no answer to the simple proposition that the Kentucky Blue Sky Law, since 1932, has been judicially construed to afford the remedy available to a purchaser induced by misrepresentation to buy securities subject to the Act, and that the period of limitation for such an action is two years from the date of sale as provided in the Blue Sky Law, KRS 292.480(3). The revisions in the Kentucky Blue Sky Law in 1960 and in 1972 contain no language evidencing a legislative design to change the Slusher result.

Thus, it would appear that the judicial construction made in Slusher concerning the civil remedy for misrepresentation in the sale of a controlled security was, to say the least, acquiesced in by the legislature. The lot of the seller is made more onerous by the Blue Sky Statute in misrepresentation cases when it allows recovery where the seller “does not sustain the burden of proof that he did not know and in the exercise of reasonable care could not have known of the untruth or omission, . . .” KRS 292.480(1) (emphasis supplied). Some of the inhibiting strictures of the law of misrepresentation are relaxed and the price exacted is the shortened limitations period. It seems to us that this is a matter of legislative policy. If the legislature would choose to make the blue sky remedy for sale by misrepresentation cumulative, it is free to do so, but in our view it has not done so yet.

The plaintiffs rely upon Detwiler v. Glavin, 377 Mich. 1, 138 N.W.2d 336 (1965). We think the reliance is misplaced. The Michigan court dealt with a state Blue Sky Law that confined itself to requirements that securities be registered. The civil remedy provided was a consequence of a failure to properly register the security. The state did not undertake to deal with sales of registered securities by misrepresentation, thus the Michigan general statute governing actions founded upon misrepresentation was held controlling. Additionally, the Michigan court was not dealing with a prior judicial construction to the contrary when it decided Detwiler. This significance of the difference in state statutory schemes was noted by the Federal 6th Circuit Court of Appeals in Charney v. Thomas, 372 F.2d 97 (1967). We, therefore, hold that the trial judge properly applied the blue sky two-year limitation statute to the plaintiffs’ claim.

Plaintiffs also argue that they properly pleaded a federal claim under the Federal Securities Law, 15 U.S.C.A. § 77q. It was conceded that the Kentucky courts have jurisdiction over plaintiffs’ claim under this statute and that since the statute provides no limitation period for actions under it, the appropriate limitation period of the State of Kentucky was to be applied. Again, plaintiffs contend that the Kentucky general statutes governing actions for fraud and deceit or actions based on a statute are the applicable statutes. We disagree. It would appear again that the blue sky limitation period should apply as “the most appropriate state statute applicable” to the claim. In the first place, the provisions of 15 U.S.C.A. § 77q are almost copied verbatim in the Kentucky Blue Sky Law. See KRS 292.820. In the second place, as has been discussed, the Kentucky civil remedies section gives a purchaser oriented action for either intentional or negligent misrepresentation in the sale of securities. That is the gist of the plaintiffs’ action under their federal claim. The Federal Circuit Court of Appeals for the 8th Circuit applied the shorter limitations period contained in the Arkansas Blue Sky Law in Vanderboom v. Sexton, 422 F.2d 1233 (1970).

Plaintiffs argue that Vanderboom is out of step with the weight of federal authority. They would have us follow Douglass v. Glenn E. Hinton Investments, Inc., 440 F.2d 912 (9th Cir. 1971). There the federal intermediate appellate court applied the State of Washington’s general limitations statute concerning actions based on fraud rather than the Washington Blue Sky Law’s shorter limitation period. In Douglass, however, the federal court had a precedent of its own on which to rely. It chose to ignore a subsequent change that had been made in the Washington Blue Sky Law. It appeared to rely upon a theory of stare decisis when the opinion noted that persons had come to rely on its prior holdings and that reasonable stability in laws pertaining to voluntary relationships between parties and the right of access to the courts to question those relationships is a worthwhile objective.

Rather than supporting plaintiffs’ approach, the 9th Circuit’s rationale would appear to be more supportive of our approach in view of the existence of Slusher and the subsequent legislative attitude toward its holding. We, therefore, decline to follow Douglass and regard Vanderboom as the better reasoned opinion. We hold that the plaintiffs’ claim based on the federal statute was also barred by KRS 292.480(3).

There is a cross appeal presented by several of the later added defendants in which it is argued that they were never properly brought before the trial court. Our holding concerning the applicability of the statute of limitations renders these issues academic. The judgment, both on the original appeal and the cross appeal, is affirmed.

All concur.


author: STEPHENSON, Justice.

text:
    Larry J. HOPKINS et al., Appellants, v. Wendell H. FORD et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 6, 1976.

      Gerry L. Calvert, Lexington, for appellants.
    Ed W. Hancock, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellees.
   STEPHENSON, Justice.

This appeal presents the question of the constitutionality of Part 6, Section 12 of the Appropriations Act of 1974. The Franklin Circuit Court entered judgment concluding that the Act does not violate the Kentucky Constitution. We affirm.

Part 6, Section 12 of the Appropriations Act is as follows:

“12 In the event General Expenditure Fund revenue estimate, plus surplus brought forward, for the 1974-75 fiscal year exceeds $916,371,095, such excess is hereby appropriated to the General Contingency Fund which is hereby created, and may be allocated, upon order of the Governor, to state agencies for the following purposes:
“(1) Statutory cost increases not otherwise provided for in this Act;
“(2) Unusual reduction or loss of other funds anticipated in the 1974-76 budget, which loss would cause an undesirable reduction in state program service levels;
“(3) Extraordinary inflationary cost increases which would otherwise cause an undesirable reduction in service levels;
“(4) Unanticipated cost increases in renovation and construction projects provided for in this Act;
“(5) Contingent or provisional projects.”

Appellants argue that (1) Part 6, Section 12 is an unconstitutional delegation of legislative power in that it gives the Governor unrestricted discretion to expend public funds without any limits as to either dollar amount or program purposes on the basis of estimated revenue; (2) the Act is void for the reason it is so vague, ambiguous and indefinite as to be impossible to ascertain the legislative intent of the act; and (3) if found to be constitutional, the Governor has abused his authority by allocating funds based upon his own priorities.

The answer to argument three is found in the findings of fact by the trial court:

“2. The Governor on June 6,1974, and on July 19, 1974, allotted funds to state agencies from the General Contingency Fund pursuant to Section 12, Part 6, of the Appropriations Act of 1974.
“3. The Commissioner of the Executive Department for Finance and Administration reported in writing the allocations referred to in Paragraph 2 to the Joint Interim Committee on Appropriations and Revenue, and the Governor consulted with the Committee in regard to such adjustments pursuant to Section 14, Part 6, of the Appropriations Act of 1974.
“4. The allocations made by the Governor referred to in Paragraph 2 were contemplated in the Governor’s budget proposal and are supported by the work papers and other records pertaining thereto pursuant to Section 15, Part 6, of the Appropriations Act of 1974.”

The appellants do not assert that the findings of fact are clearly erroneous; nor do they point out any specific action argued as an abuse of power. Our review of the record reveals that these findings were based upon testimony of appellees’ witnesses and that no contradictory testimony was introduced. Consequently, we are of the opinion there is no showing of abuse of power in allocating surplus funds.

Appellants’ contention as to argument two is centered on Part 6, Section 12, Subsection 5, “contingent or provisional projects.” Appellees’ witness testified that a “contingent project” is defined as one which has been approved but has not been funded because of lack of present and prospective funds. He defined a “provisional project” as one for which federal funds will be provided on a matching basis, also unexpected casualty losses such as a state building destroyed by fire. There is nothing in the record to suggest that these definitions were not fully understood by the executive and the legislature. Subsections 1, 2, 3, and 4 are manifestly clear and unambiguous. We are of the opinion that the terms of the Act are neither vague, ambiguous or indefinite.

Consideration of argument one necessitates a reading of Section 11 of the Act in context with Section 12.

In summary, Section 11 recites the complex nature of the economy and its uncertainties, the impact of the energy crisis together with the unreliability of federal funding under present policies, the necessity mandated by the budget act that expenditures for each fiscal year shall not exceed the total financial resources for the same fiscal year, actions to be taken to prevent an overdraft or deficit in any fiscal year by reducing expenditures, and, finally, a descending list of priorities for effecting reductions in appropriations in the event of the threat of a deficit. We note that eliminating of all contingent or provisional appropriations is the first reduction to be made.

Thus Section 11 recognizes and provides for the contingency of a threat of deficit in appropriations due to reduced revenues and makes provisions for reductions, while Section 12 recognizes and provides for the contingency of a surplus in revenues and makes provision for the use of surplus in the five categories set out above.

Appellants’ principal argument as to the constitutionality of Section 12 is that this portion of the Act is not an appropriation within the meaning of Section 230 of the Kentucky Constitution for the reason that the questioned section fails to provide for dollar or purpose limitations, and thus is an unconstitutional delegation of legislative power.

Section 230 of the Kentucky Constitution provides that “No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law; . .” We find this section construed in Commonwealth v. Johnson, 292 Ky. 288, 166 S.W.2d 409, 414 (1942), thusly: “It will be observed that this language does not undertake to prescribe the form to be used in making appropriations nor does it require that appropriations be detailed, definite, or specific.” And in Ferguson v. Oates, Ky., 314 S.W.2d 518, 521 (1958), this court said the purpose of this section “ ‘was to prevent the expenditure of the State’s money without the consent of the Legislature.’ ”

Appellees remind us that the Kentucky Constitution is not a grant of power. It operates solely as a limitation of power, and an act of a state legislature is legal when the constitution contains no prohibition against it. See Rhea v. Newman, 153 Ky. 604, 156 S.W. 154 (1913).

Appellees direct our attention to various appropriation acts in prior years which appropriate funds, without dollar limits and contingent upon the receipt of revenue, to certain specifically named funds: the State Road Fund, the Minimum Foundation Program, and the Capital Construction Fund, which in recent years has been the fund designated to receive surplus revenue to be allocated by the Governor. These acts of course are not questioned here. On the other hand, appellants cite past appropriation acts which appropriate surplus funds with maximum dollar amounts. These are contingent provisions, and there is no real argument that the legislature may not make contingency appropriations such as those cited by appellants. We are of the opinion that the provisions of Section 230 of the Constitution are not so limited as to require fixing dollar amounts in order to validate allocation of surplus revenue in the context of the statute in question. The appropriation is limited so that expenditures may not exceed revenue as provided in the budget act. The principle that the Constitution does not prohibit some delegation of legislative power is well settled. Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d 584 (1963). It is all a matter of degree to be determined in the light of specific acts and circumstances. We can only say that the delegation of authority here is not such a degree of delegation by the legislature as would amount to an abdication of the legislative duty to make appropriations under Section 230 of the Constitution.

A further argument of appellants is that the Act authorizes expenditures of surplus funds based upon an estimated surplus in revenue. With regard to this argument, our attention is directed to the method of financing state government. The budget for the operation of state government is proposed and appropriations made by the legislature based upon estimated revenue. Admittedly, this is not an exact science. And forces and circumstances unforeseen at the time of the estimate can radically alter the total revenues actually received or during the continuing forecasting of revenues the same can occur. For purposes of this case, we can see no difference insofar as the power of the legislature is concerned. The situation here is controlled by the requirements of the budget act which forbid actual spending of excess revenue. It is apparent that state government could not operate without basing expenditures upon anticipated revenues; and actual surplus, in our opinion, would be in the same category as estimated surplus so far as the question of requirement of dollar limitation is concerned.

Appellants’ argument that the actions of the Governor could and probably would lead to a deficit is negated by the provisions of the Act; and, in any event, it is not suggested in this record that such actions have been taken or are contemplated.

It is not our function to sit in judgment upon the wisdom of legislative acts, but only to determine the power of the legislature in accordance with the provisions of the Kentucky Constitution. It is apparent that appellants’ arguments are largely directed to the possibility of unscrupulous actions on the part of the executive which possibly could occur and thwart legislative intent. None is suggested here, and we can only say that in this respect the wisdom of the legislature is being called into question and that area does not lie within our power to adjudicate.

We conclude that the Act does not violate Section 230 of the Constitution, nor is it an unconstitutional delegation of legislative power.

The judgment is affirmed.

REED, C. J., and CLAYTON, JONES, LUKOWSKY, PALMORE and STEPHENSON, JJ., sitting.

All concur.

STERNBERG, J., not sitting.


author: STERNBERG, Justice.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of Special Fund, Appellant, v. Ernestine PIERCE et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 20, 1976.

      Earl Cornett, Gen. Counsel, Dept, of Labor, Frankfort, Timothy P. O’Mara, Asst. Counsel, Dept, of Labor, Louisville, for appellant.
    Craig Housman, Charles A. Williams & Associates, Richard C. Roberts, Thomas B. Russell, Threlkeld, Whitlow & Roberts, Pa-ducah, for appellees.
   STERNBERG, Justice.

This is an appeal from a final order of the Graves Circuit Court affirming the opinion and award of the Workmen s Compensation Board, which granted claimant Ernestine Pierce compensation for a permanent partial disability.

Mrs. Pierce is 48 years of age and had worked for the Merit Clothing Company for almost 30 years. On February 6, 1973, while working at her job as a ticket operator, she suffered a nervous breakdown and has not been able to work from that date. The employer is a clothing manufacturing company. Mrs. Pierce worked on a production job that required much concentration. She was required to ticket various items of clothing for different colors of thread and to match the threads with the dominant color in the garments.

The board found that on February 6, 1973, Mrs. Pierce suffered a non-traumatic work-related neurosis while working as a ticket operator in the Merit Clothing Company’s factory; that claimant sustained a 25% permanent partial occupational disability; that prior to the injury she had no active occupational disability but did have a dormant nondisabling disease or condition which was aroused or brought into disabling reality to the extent of 20% occupationally to the body as a whole; and that the remaining occupational disability was attributable to a work-related harmful change in the human organism.

The Special Fund appeals. The employer cross-appealed; however, we need not consider the cross-appeal as it has been withdrawn. The award and the judgment of the circuit court as between claimant and her employer is final.

The only medical testimony brought before the board was from Dr. Frederick C. Ehrman and Dr. Frank Kodman, Jr. Claimant was referred by the board to Dr. Ehrman for psychiatric evaluation. After the doctor’s examination and evaluation, he reported that claimant was not suffering from any active disability prior to February 6, 1973; that her personality makeup or structure represented a dormant nondis-abling condition capable of being aroused into disabling reality by subsequent events; that the alleged injury of February 6, 1973, would not have produced the entire disability, which he placed at 10% to her body as a whole; and that the percentage of disability was the result from the arousal into disabling reality of a dormant nondisabling condition capable of being aroused into such reality by the occurrence of the February 6, 1973, incident.

Dr. Kodman made an in-depth interview and psychological evaluation on claimant. He found that she had “ * * * a severe chronic neurosis, marked by a high degree of anxiety and inability to tolerate any stress * * *resulting in “ * * * a handicapping condition which renders her basically helpless * * As to her ability to be gainfully employed, Dr. Kodman said, “At the time of this examination in March of 1974, my opinion would be that she could not be gainfully employed.” He stated that her condition was caused by “ * * * an anxiety neurosis that has gradually increased in severity over the past ten years. I think that the demands made by her work at the plant simply is a factor that tilted her over so that she was simply unable to cope with the requirements of her job.”

The Special Fund complains that the board erred in finding that claimant’s disability was the result of a work-related neurosis which occurred while she was employed by the Merit Clothing Company.

At the time of claimant’s work-related neurosis the liability of her employer or the Special Fund had its origin in KRS 342.-610(1) and KRS 342.620(1). These statutes provide:

“342.610 Liability for compensation.
(1) Every employer subject to this chapter shall be liable for compensation for injury, occupational disease, or death without regard to fault as a cause of the injury, occupational disease, or death.
“342.620 Definitions. As used in this chapter unless the context otherwise requires:
(1) ‘Injury’ means any work related harmful change in the human organism, including damage to or loss of a prosthetic appliance, but does not include any communicable disease unless the risk of contracting such disease is increased by the nature of the employment. ‘Injury’ when used generally, unless the context indicates otherwise, shall include an occupational disease.”

In fixing liability on the employer, the board found that claimant suffered a “ * * work related harmful change in the human organism which event occurred February 6, 1973 and is occupationally disabling to the extent of 5% to the body as a whole.” Appellant charges that this finding is not supported by the evidence of record. Counsel for appellant directs our attention to former KRS 342.005, which was the statute that provided guidelines for establishing liability as between the employer and the employee prior to its repeal at the regular session of the 1972 General Assembly (Chap. 78, Sec. 36, SB 184). Appellant contends that the change in the definition of “injury” still imposes certain criteria which must be established in order for an injury to be compensable and that this criteria is something more than the requirement that the injury occurred in the course of the claimant’s employment.

The enactment of KRS 342.610 and 342.-620 brought into focus the determination of the legislature to bring relief to employees who suffer from work-related disabilities brought about by other than physical trauma. Literally, hundreds of persons who had suffered work-related disabilities but which were not a direct result of physical trauma found themselves without relief. The repeal of KRS 342.005, the enactment of KRS 342.610 and 342.620, and the amendment of KRS 342.120 have placed a new focus on work-related disabilities which are not the direct result of physical trauma. Thus, we have the definition of “injury” broadened to include “any work related harmful change in the human organism.”

Dr. Ehrman, in describing claimant’s current physical work-related condition, said that she has dizzy spells; gets tied in “knots”; wanders around and doesn’t know where she is; and represents a chronic hysterical personality with pronounced dependency traits. Dr. Kodman described her as having dizziness, incoordination, lack of confidence, withdrawn from normal social types of contacts, and “ * * * her ability to really put things together, try to cope even with the day to day concerns would be poor ⅜ *

In Hudson v. Owens, Ky., 439 S.W.2d 565, we said:

“ * * * The assessment of occupational disability is a factual determination and is a legal concept. Functional disability is a medical concept. Causation in these heart attack cases is a factual determination based on a legal concept for the purpose of determining whether or not the work shall be deemed as the legal cause of the disability or as only the stage on which the inevitable tragedy occurred, so that the cardiac disability is merely coincidental with, rather than legally caused by, the work-connected event.”

The board is the sole finder of facts in compensation proceedings, and when such facts are based on substantial evidence, they are conclusive and binding on this court. Armco Steel Corporation v. Mullins, Ky., 501 S.W.2d 261.

There is substantial evidence in the record that claimant suffered a harmful change in the human organism which was work related.

Next, appellant questions whether claimant’s personality makeup or structure was a dormant nondisabling disease or condition within the meaning of KRS 342.120.

KRS 342.120 was amended by the 1972 regular session of the General Assembly to clarify a controversial situation. Pri- or to the amendment, this statute, in subsection (l)(b), used the explanation “dormant non-disabling disease condition” and in subsection (4) talked about “disability resulting from a dormant disease aroused.” The amendment changed subsection (l)(b) by inserting the disjunctive “or” between the words “disease” and “condition”. In subsection (4) the amendment added the words “or condition” after the word “disease”. There is no room for doubt that the statute now refers to a condition separate and apart from a disease.

Dr. Ehrman reported that claimant had a dormant non-disabling condition. Dr. Kodman described the condition as an anxiety neurosis that has gradually increased into severity over the past ten years. The medical testimony is sufficient on which the board could rest a finding of fact. The board found that Mrs. Pierce, prior to February 6, 1973, had “ * * * a dormant non-disabling disease or condition which was aroused or brought into disabling reality to the extent of 20% occupationally to the body as a whole. This portion falls upon the Special Fund.” We agree.

Finally, the Special Fund argues that it has no liability because the claimant’s disability is not the result of a subsequent injury by accident. It attempts to differentiate liability as fixed on the employer by KRS 342.610 and 342.620 and that which attaches to the Special Fund by KRS 342.120. It argues that since liability on the Special Fund is predicated on injury by accident or disease, there can be no liability placed on the Special Fund if it is only shown that there was a work-related harmful change in a human organism. In other words, the Special Fund argues that there must be some physical trauma associated with the disabling event.

This court treated the words “accident”, “accidental cause”, and “accidental result” in North American Refractories Company v. Jackson, Ky., 346 S.W.2d 10, and arrived at the following conclusion:

“ * * * we hold that, if there is medical testimony that the strain of the employee’s work-connected exertions caused him bodily harm, the injury is accidental within the meaning of KRS 342.005(1). * * * ”

In Hudson v. Owens, supra, this court expressed its concern with exercises in semantics over the word “accidental” and stated as follows:

“In short, a fortuitous unexpected injury to the workman, traceable to the performance of his work, is sufficient to provide the accidental quality demanded by our compensation statute.”

An excellent discussion of the justification for an award of workmen’s compensation for a nervous condition resulting from assembly line work may be found in Carter v. General Motors Corporation, 361 Mich. 577, 106 N.W.2d 105 (1960).

There is substantial evidence to support the conclusion that Mrs. Pierce’s injury was the unexpected result of the performance of her duties.

The judgment is affirmed.

All concur, except REED, C. J., who concurs in result only.