Commonwealth v. Parson6/17/2004
in, lack of range of cervical motion caused by muscle spasms, upper thoracic pain, and numbness of the right arm. He administered physical therapy treatments to Eberle on twenty-seven occasions between June 20 and October 13, 2000 . Because he was unable to relieve her symptoms, he suggested that Dr. Riley refer Eberle to a pain management specialist . Accordingly, Dr. Riley referred Eberle to Dr. David Zhou.
Dr. Zhou testified that he first saw Eberle on October 30, 2000, and diagnosed headaches and neck pain caused by the May 30, 2000, vehicular assault. He injected anti-inflammatory medications into her neck and prescribed oral anti-inflammatory medications and muscle relaxants . He continued to treat her periodically and was still treating her at the time of trial. Her last visit was on December 28, 2000, five days before trial. At that time, she still suffered from neck pain, although the numbness in her arms had improved and her headaches had dramatically improved . She was still taking oral anti-inflammatory medications and muscle relaxants and Dr. Zhou was considering referring her for additional physical therapy .
Eberle testified that her employment history included working in a department store, a factory, and as a roofer. At the time of the assault, she was employed full-time as a baby-sitter for children whose parents worked a night shift. After the assault, she quit work in part because of her injuries and the frequency of her physical therapy visits and in part because her domestic companion earned enough income from his employment to support both of them . She testified that she still suffers from neck pain and that she did not "choose not to work."
Appellant claims that Eberle sustained only "substantial physical pain" as a result of the assault, thus only a "physical injury." The Commonwealth claims that Eberle also sustained "prolonged impairment of health" as a result of the assault, thus the jury was properly instructed on the offense of assault 2nd . We agree with the Commonwealth .
In Lutrell v. Commonwealth , Ky., 554 S.W .2d 75 (1977), we held that a police officer who was shot in the chest with bird shot, was hospitalized for five days, and was off work for approximately six weeks had not, as a matter of law, sustained a serious physical injury. Id . at 77-79. And in Souder v. Commonwealth , Ky., 719 S .W.2d 730 (1986), we held that a child who sustained bruising, a swollen arm, and burns in and about the mouth from a cigarette or cigarette lighter, none of which required follow-up treatment after an emergency room visit, had not sustained a serious physical injury. Id . at 732. However, in Commonwealth v. Hocker, Ky., 865 S .W.2d 323 (1993), we held that an assault victim who sustained facial contusions and lacerations requiring sutures, the loss of several teeth which were successfully reimplanted, and a nondisplaced linear fracture of the skull followed by symptoms of concussion but no neurologic injury, was properly found to have sustained a serious physical injury. Id . at 324-25. In Meredith v. Commonwealth , Ky. App ., 628 S .W.2d 887 (1982), the Court of Appeals held that the language, "impairment of physical condition," in the definition of "physical injury" simply means "injury." Id . at 888. See also Hubbard v. Commonwealth , Ky. App., 932 S.W .2d 381, 383 (1996) .
We have not previously addressed what constitutes "prolonged impairment of health" in the context of the definition of "serious physical injury." However, in Cronin v. State , 454 A.2d 735 (Del . 1982), it was held that evidence that two of the victim's teeth were dislodged during the assault, that subsequent dental surgery failed to leave the teeth in proper
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