SHIRLEY O'QUINN v. LARRY LYNN, D.M.D.
Annotate this Case
Download PDF
RENDERED: August 27, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001295-MR
SHIRLEY O'QUINN
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 96-CI-01267
v.
LARRY LYNN, D.M.D.
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order of the Pike
Circuit Court sustaining appellee’s motion for judgment
notwithstanding the verdict (“NOV”).
Appellant argues the
judgment NOV was rendered in error because she presented
sufficient evidence that she was discharged in retaliation for
exercising her rights under Kentucky’s workers’ compensation
laws, in violation of KRS 342.197.
After reviewing the record
and applicable law, we reverse the judgment NOV and remand for a
new trial.
Shirley O’Quinn, appellant, had begun working as a
dental assistant for appellee, Dr. Larry Lynn, in 1986.
Her
duties included serving as a dental hygienist, as well as other
dental office work.
In 1987, appellant developed a skin
condition caused by an allergic reaction she had to certain
chemicals used in the office, particularly formo-cresol, a
chemical used in processing dental x-ray’s.
Exposure to these
chemicals caused appellant to suffer blisters, cracks, and sores
on her hands.
Her condition worsened after she spilled some
formo-cresol on her hands.
In addition to the skin condition,
her allergic reaction to the office chemicals also caused
appellant to suffer breathing problems.
Appellant was treated by
a doctor and a dermatologist, and had to take numerous
medications to relieve her symptoms.
The dermatologist also
recommended that appellant wear gloves.
Appellant filed a worker’s compensation claim in 1991.
In an opinion and order dated March 16, 1993, the administrative
law judge (ALJ) concluded that appellant was suffering an
occupational disability of 25%.
The ALJ determined that as a
result of appellant’s exposure to the chemicals in the dental
office, she had developed asthma and dermatitis.
In addition to
the compensation awarded, which was apportioned 60/40 between
Lynn and the Special Fund, the order stated that appellant “shall
further recover of the Defendant Employer for the cure and relief
from the effects of the injury such medical, surgical and
hospital treatment including nursing, medical and surgical
supplies and appliances as may reasonably be needed to treat her
occupational disease and thereafter during disability.”
-2-
The
ALJ’s order noted that Lynn contested the medical expenses award,
but stated that he had failed to show that the medical expenses
were not related to appellant’s work injury.
After receiving the award, appellant continued to work
for Lynn.
Appellant had been advised by the dermatologist to
wear gloves to protect her hands from the chemicals, but because
she was allergic to latex, she eventually had to quit wearing the
standard latex gloves used in the dental office.
As a result,
although appellant’s skin condition was still causing her to have
sores and cracks on her hands, she worked with no gloves, despite
the fact that she worked around patients’ bodily fluids.
Therefore, in January, 1996, appellant was written a prescription
by a physician for hypo-allergenic gloves.
These special gloves,
at $42.50 per box, were more expensive than the regular latex
gloves normally used in the office.
Lynn resisted buying the
special gloves, stating, according to appellant, “I won’t, I
can’t, and I don’t see who will”.
Therefore, appellant, who
made $6.00 an hour, bought the first box of gloves herself.
Appellant submitted a claim to Lynn’s insurance company, Wausau,
but Wausau did not pay the claim.
Appellant bought the second box of gloves herself, and
again, submitted the claim to Wausau.
On May 30, 1996, Wausau
sent a letter to appellant informing her that Wausau would not
pay for the gloves, and that it was Dr. Lynn who was required to
pay for the gloves.
The letter stated, “Your employer already
provides gloves for all employees, it should be the employer’s
responsibility to pay for special gloves if you require them due
to your pre-existing condition of sensitive skin.”
-3-
Wausau sent a
copy of this letter to Lynn.
Eventually, Lynn reimbursed
appellant for the cost of the second box.
Due to the
difficulties appellant was having getting Wausau or Lynn to pay
for the gloves, she had to try to make a box of gloves last as
long as she could.
She would use the same pair over and over,
washing them herself in between patients.
Appellant eventually
ran out of gloves again, and had to work without gloves in the
month of June, 1996.
Finally, at the end of June, Lynn, after
persistence by appellant, bought her another box of gloves.
On August 5, 1996, appellant had run out of the special
gloves again.
She had notified Lynn the week before that she was
almost out of gloves.
On the morning of August 5, appellant
asked Lynn if he had obtained any gloves for her, and he replied
that he had not.
She was supposed to prepare a patient that
morning for a crown, a procedure which would involve blood.
Appellant had begun to fear for her health working as a dental
assistant without gloves, and therefore told Lynn that she was
going home, and to call her if he got some of her special gloves.
Lynn then became angry at appellant, and appellant went home.
When appellant came into work the next morning, August 6, 1996,
Lynn fired her, stating the reason as “insubordination”.
On September 3, 1996, appellant filed a complaint
against Lynn in Pike Circuit Court, alleging that she was
terminated by him in retaliation for attempting to exercise her
rights under Kentucky’s workers’ compensation laws, and seeking
compensatory and punitive damages.
October 21-22, 1997.
A jury trial was held on
At the end of appellant’s evidence, defense
counsel made a motion for a directed verdict, arguing that
-4-
appellant did not have a cause of action under KRS 342.197,
rather that this was a medical fee dispute governed by 803 KAR
25:012.
The trial judge denied the motion.
Defense counsel
renewed the motion for directed verdict at the end of the trial.
The judge denied the motion again, and allowed the case to go to
the jury.
After over four hours of deliberation, there was a
hung jury, and the case ended in a mistrial.
On October 31,
1997, defense counsel filed a motion for judgment notwithstanding
the verdict, based upon the same arguments stated in both of his
motions for directed verdict.
In an order entered on May 7,
1998, the judge sustained the motion, finding that there was not
a cause of action for wrongful discharge.
We disagree.
KRS 342.197 states, in part:
(1) No employee shall be harassed, coerced,
discharged, or discriminated against in any
manner whatsoever for filing and pursuing a
lawful claim under this chapter.
. . . .
(3) Any individual injured by any act in
violation of the provisions of subsection (1)
or (2) of this section shall have a civil
cause of action in Circuit Court to enjoin
further violations, and to recover the actual
damages sustained by him, together with the
costs of the law suit, including a reasonable
fee for his attorney of record.
The ALJ’s order of March 16, 1993 stated that appellant
was to recover from Dr. Lynn
“. . . for the cure and relief from
the effects of the injury . . . including nursing, medical and
surgical supplies and appliances as may reasonably be needed to
treat her occupational disease . . . .”
The hypo-allergenic
gloves which appellant required were prescribed by a doctor as a
part of appellant’s treatment and relief from her skin condition.
-5-
By insisting that the gloves be provided for her, either by Lynn
or his insurance carrier, Wausau, appellant was pursuing a
benefit she was entitled to under the order.
In Overnite
Transportation Company v. Gaddis, Ky. App., 793 S.W.2d 129
(1990), this Court held that “. . . the legislature’s purpose in
enacting KRS 342.197 was to protect persons who are entitled to
benefits under the workers’ compensation laws and to prevent them
from being discharged for taking steps to collect such benefits.”
Therefore, appellant’s pursuit of the gloves was protected by KRS
392.197.
The standard of review on a motion for judgment NOV is
the same as that on a motion for a directed verdict, the test of
which is if, under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then is the defendant
entitled to a directed verdict of acquittal.
Commonwealth v.
Benham, Ky., 816 S.W.2d 186 (1991); Commonwealth v. Runion, Ky.
App., 873 S.W.2d 583 (1993).
Our review of the record indicates that there was
sufficient evidence for a jury to reasonably find Lynn guilty of
retaliatory discharge, and that therefore the trial court erred
in sustaining Lynn’s motion for a judgment NOV.
The record
clearly indicates that appellant’s insistence on being provided
with the more expensive hypo-allergenic gloves was a point of
contention between appellant and Lynn.
An employee is not
required to prove that he was discharged “solely” because he
filed or pursued a worker’s compensation claim; rather, the
employee need only prove that filing or pursuing the workers’
compensation claim was a substantial and motivating factor in her
-6-
dismissal.
First Property Management v. Zarebidaki, Ky., 867
S.W.2d 185 (1993).
The record indicates that appellant’s need for the
special gloves caused problems between appellant and Lynn.
Lynn
was reluctant to provide the hypo-allergenic gloves for her, yet
expected her to continue performing her dental office duties,
sometimes with no gloves or with gloves she was re-using.
Appellant was fired the day after she argued with Lynn about the
gloves.
At trial, appellant testified that “The reason I was let
go was because I asked for the gloves”.
fired appellant for insubordination.
Lynn claims that he
However, at trial Lynn
stated that the argument that took place after appellant asked
about the gloves on August 5, 1996 “was the straw that broke the
camels back”.
The Kentucky Supreme Court has stated:
[T]he employer is not free from liability
simply because he offers proof he would have
discharged the employee anyway, even absent
the lawfully impermissible reason, so long as
the jury believes the impermissible reason
did in fact contribute to the discharge as
one of the substantial motivating
factors. . . .
Zarebidaki, 867 S.W.2d at 188.
For the aforementioned reasons, we adjudge that the
evidence was sufficient for a jury to reasonably believe that
appellant’s pursuit of the hypo-allergenic gloves was a
substantial motivating factor in her discharge, a violation of
KRS 342.197.
Therefore, we conclude that the trial judge erred
in sustaining Lynn’s motion for judgment notwithstanding the
verdict.
The order of the Pike Circuit Court is reversed and the
case remanded for a new trial.
-7-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lawrence R. Webster
Pikeville, Kentucky
Randy G. Clark
Pikeville, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
