INSULT TO INJURY – Retaliation Against Workers’ Compensation Claims

Kentucky law, under the Kentucky Workers’ Compensation Act, requires that employers pay for the medical bills, a portion of lost wages, or for the permanent disability of an employee who is injured on the job.  In exchange for these benefits, employees are generally prohibited from filing a lawsuit against their employers for negligence related to their injuries (so long as the employer carries workers’ compensation insurance).  This tradeoff is usually beneficial to both parties – it provides comprehensive coverage for employee injuries, while at the same time reducing the need for formal litigation.

However, despite the mutual benefit the KWCA provides to employers and employees, some employers might not be particularly friendly towards the concept of workers’ compensation.  In fact, many may be downright hostile towards workers’ comp claims.  It is not uncommon for an employee to experience resistance, or even backlash, from his or her employer when filing a workers’ compensation claim.

Take for example, the case of Griffin Industries, Inc. v. Priester, 2010 WL 1132963 (Ky. App. 2010).  The Plaintiff in Priester worked for the Defendant company as a driver for a truck that collected the waste from grease traps at area restaurants.  One night, while on duty, the Plaintiff injured his back.  The Plaintiff’s supervisor instructed him to visit the company doctor in order to keep his medical costs down.  The supervisor informed the Plaintiff that if his medical costs rose above a certain level, then the company’s safety committee would deem the accident a violation of the company’s safety policy, and that it would negatively affect his bonus.  The Plaintiff attempted to keep his medical costs below level, but was charged with a violation anyway.  Additionally, the company was refusing to pay for the Plaintiff’s medical bills.

The orders from the Plaintiff’s doctor allowed him to work “light duty,” which the company complied with by placing the Plaintiff at a security guard station, working the gate.  The Plaintiff received no training for the position.  During this time, the Plaintiff’s supervisor placed pressure on him to lie to his doctor in order to be returned to full duty sooner.

One evening while the Plaintiff was working, the mechanical gate at the guard station closed on a client’s vehicle and caused a significant amount of damage.  Although the Plaintiff had been working, he was not manning the automatic gate when it closed on the vehicle.  Shortly after this accident, the Plaintiff’s doctor assigned him an additional week of light duty work.  Upon hearing this, the Plaintiff’s supervisor became enraged.  He blamed the plaintiff for causing the vehicle damage and terminated him.

The employer in the above case clearly used the security gate incident as a pretextual reason for the Plaintiff’s termination.  The gate closing on the client’s vehicle was the result of a malfunction, not any negligent act of the Plaintiff.  The company was clearly upset at the prospect of compensating the Plaintiff for his injury, and for having to reassign the Plaintiff to light duty work for another week.

The Workers’ Comp Anti-Retaliation Provision

Fortunately for the Plaintiff in Priester, and for Kentucky workers in general, the KWCA protects employees from being retaliated against for filing, or intending to file, a worker’s compensation claim.  KRS 342.197(1) states that “no employee shall be harassed, coerced, discharged, or discriminated against in any manner for filing and pursuing a lawful claim …”  This is known as the anti-retaliation provision of the KWCA.  Cases falling under this provision often involve the termination or demotion of an injured worker.

A successful Plaintiff under the KWCA’s anti-retaliation provision has to prove three things:  (1) that he or she was pursuing or intended to pursue a workers’ compensation claim; (2) that he or she was terminated; and (3) that his or her workers’ comp claim was at least partially the cause of his or her termination.

The third element is usually the most litigated issue in a retaliation case, because it may be difficult for a Plaintiff to prove.  Many times, an employer can invent or exaggerate a reason for terminating an employee seeking workers’ comp benefits.  In order to even the playing field, courts allow for this element to be met through evidence that shows (1) that the person who terminated the employee knew he or she was seeking workers’ compensation, and (2) that the time between the employee’s termination and his or her filing of claim was close in proximity.

Additionally, because of the difficulty a plaintiff may have in proving termination was the result of a claim, courts have also decided that the claim need only be a motivating factor in the decision to terminate an employee, not the sole factor.  This makes the burden of proof much lighter on the plaintiff.

If a plaintiff does file a successful claim of retaliation, then KRS 342.197(3) allows the plaintiff to recover actual damages, the cost of the lawsuit, and reasonable attorney’s fees.  The truck driver in Priester was such a plaintiff, as the court found that his termination was motivated by his intent to file a workers’ compensation claim.  He was awarded lost wages and attorney’s fees, and received an additional award for emotional distress.

If you believe you might have been terminated for filing a workers’ compensation claim, you may be the victim of unlawful retaliation.