LINDA S. WYMER AND GARY E. WYMER V. JH PROPERTIES, INC., D/B/A JEWISH HOSPITAL, SHELBYVILLE; ERIC NOVOSEL; WANDA MOORE; LORI FRYREAR; DEBBIE MOLNAR; CAROL HAWES; AND JOHN KURNICK
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RENDERED: MAY 24,200l
TO BE PUBLISHED
, (,
1999-SC-1133-D
LINDA S. WYMER AND
GARY E. WYMER
ON REVIEW FROM COURT OF APPEALS
98-CA-0986-MR
SHELBY CIRCUIT COURT NO. 95Cl-243
V.
JH PROPERTIES, INC.,
D/B/A JEWISH HOSPITAL, SHELBYVILLE;
ERIC NOVOSEL; WANDA MOORE; LORI FRYREAR;
DEBBIE MOLNAR; CAROL HAWES; AND
JOHN KURNICK
APPELLEES
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING IN PART AND REVERSING IN PART AND REMANDING
This appeal is from an opinion of the Court of Appeals which affirmed a summary
judgment of the circuit court which had dismissed the Wymer complaint against all
defendants.
The questions presented are whether Workers’ Compensation is the exclusive
remedy available to Wymer; whether the employment at-will doctrine in Kentucky should
be modified and whether the employment related claims should be reinstated.
Linda Wymer had worked for Jewish Hospital, Shelbyville, which is owned by JH
Properties, Inc., for 16 years as an operating room technician. In 1993, she was kicked
in the shoulder by a patient who was coming out of anesthesia. She sought medical
attention from an orthopedist with whom she had worked. He treated her conservatively
and took her off work for two weeks. Her shoulder problems did not improve and she
had surgery in June of 1994. Her surgeon recommended physical therapy and she
went to the Jewish Hospital therapist in Shelbyville because of its proximity to her home.
Unfortunately, the physical therapist employed by Jewish Hospital tore her deltoid
muscle from her shoulder during the course of the treatment. As a result she was
severely injured and her left arm and shoulder became totally useless and she was in
constant pain.
Wymer returned to work at Jewish Hospital performing clerical duties. She
underwent a second surgery for the purpose of reattaching her deltoid muscle in
January of 1995. Following this surgery, she worked in the surgical unit as a clerk in a
position that had been created for her.
Wymer applied for workers’ compensation benefits and subsequently filed a
medical negligence lawsuit against the hospital and the therapist on June 14, 1995. On
July 11, 1995, she was told by the Director of Human Resources of the hospital that
because she could no longer function as an ORT in the surgical unit, her employment
would end unless she found other employment for which she was otherwise qualified
within the hospital system before July 19. An appointment was made to discuss further
employment opportunities on July 13, and Wymer brought her attorney with her to the
meeting. The hospital refused to meet with Wymer unless her attorney was not present
and she refused to meet with the hospital unless counsel was present. She was
terminated on July 19.
Wymer amended her complaint in circuit court to add claims of wrongful
discharge, outrage, defamation, false light, disability discrimination, fraud, promissory
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estoppel and breach of implied contract. The circuit court granted a summary judgment
for all defendants, ruling that the negligence claims were preempted by the Workers’
Compensation Act; that her tort claims were preempted because they occurred during
her employment, and in any event they were not supported by the facts. The Court of
Appeals affirmed the result, holding that the dual capacity doctrine did not apply
because of the Workers‘ Compensation Law. This Court accepted discretionary review.
I. Negligence Claim
The Court of Appeals affirmed the summary judgment issued by the circuit court
which dismissed the negligence action against Jewish Hospital and therapist Novosel
based on its interpretation of Borman v. Interlake. Inc., Ky.App., 623 S.W.2d 912 (1981)
which held that the Workers’ Compensation Act prohibited the application of the dual
capacity doctrine. KRS 342.690. The Borman court said that the language of the
statute demonstrated an intent to maintain the exclusivity of the remedy principle intact.
Jewish Hospital and Novosel rely on KRS 342.690(l) which states:
If an employer secures payment of compensation as
required by this chapter, the liability of such employer under
this chapter shall be exclusive and in place of all other
liability of such employer to employee . . . .
Exemption from liability provided an employer by the statute also extends to
employees of the employer. Fireman’s Fund Insurance v. Sherman & Fletcher, Ky., 705
S.W.2d 459 (1986). Generally an employer is responsible for additional disability
resulting from the aggravation by necessary medical or surgical treatment.
Elizabethtown Sportswear v. Stice., Ky.App., 720 S.W.2d 732 (1986). See also Larson,
Workers’ Compensation Law s13.21 (1990).
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In this case, there were two distinct injuries. The work related injury occurred in
1993 when Wymer suffered an injury to her shoulder as a result of a patient kicking her
when coming out of anesthesia. The second injury occurred during physical therapy in
1994 when the therapist tore the deltoid muscle from her shoulder. The medical
malpractice injury was not in the course and scope of her employment. This case is
factually different from Borman, supra. See also KRS 342.0011; Roaers v. Vermont
American Corp., Ky.App., 936 S.W.2d 775 (1997).
When she was first injured, Wymer chose her own doctor and accepted the
recommendation of that physician for a surgical treatment. Later, her physician referred
her to physical therapy at Jewish Hospital in Shelbyville, which was the closest physical
therapy available. Jewish Hospital did not select any of the physicians involved, nor did
it require her to have physical therapy in Shelbyville. The medical negligence claimed
by Wymer does not attempt to sue Jewish Hospital in a dual capacity but rather for a
separate and distinct incident which occurred to her. Wymer made her own choice of
physician and therapist and her employer had no input in these decisions.
The circuit court did not consider the implication of KRS 342.020(7), where the
employer can apply to the ALJ for relief to choose a healthcare provider if it is
dissatisfied with the progress of the employee. The facts in this case are clearly
distinguishable from Borman and that case does not provide the authority to prevent the
negligence claim by Wymer.
Similar decisions have been reached by other jurisdictions. Wriaht v. State, 639
So.2d 258 (La. 1994) held that a medical malpractice claim for improper hernia repair
necessitated by work injury was not barred by workers’ compensation. Tatum v.
Medical Universitv of South Carolina, 517 S.E.2d 706 (1999) noted the distinction that
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the employee was not working in the capacity for which she was employed when she
was injured by the alleged malpractice. See William J. Appel, Annotation, “Dual
Capacitv Doctrine” as basis for emplovee’s recoverv for medical malpractice from
companv medical personnel, 73 A.L.R. 4th 115 (1989). See also Michael A.
Disabatino, Annotation, “Dual Capacity Doctrine” as basis for emolovee’s recover-v from
employer in tort. 23 A.L.R. 4th 1151 (1983).
McCorkle v. McCorkle, Ky., 265 S.W.2d 779 (1954) Black Mountain Corp. v.
Middleton, 243 Ky. 527, 49 S.W.2d 318 (1932) Powell v. Galloway, 229 Ky. 37, 16
S.W.2d 489 (1929) and Elizabethtown Soortswear, supra, support the argument that the
crucial issue is whether the employer chose the medical provider who caused the
alleged injury. In these cases the employer selected or helped select the hospital or
doctor. That is not the situation here.
This Court reverses the opinion of the Court of Appeals in regard to preemption
by the Workers’ Compensation Act of the medical negligence claims and remands this
aspect of the case to the circuit court for trial or other appropriate action consistent with
this opinion. We consider the claims arising from the alleged wrongful discharge later in
this Opinion.
II. Employment at Will
Ordinarily an employer may discharge an at-will employee for good cause, for no
cause, or for a cause that some might view as morally indefensible. Product Oil Co. v.
Johnson, Ky., 313 S.W.2d 2d 411 (1958); Scroaham v. Kraftco Corp., Ky.App., 551
S.W.2d 811 (1977). There are limitations on the at-will doctrine to provide protection
from abuses. Firestone Textile Co. Division v. Meadows, Ky., 666 S.W.2d 730 (1983)
and Grzvb v. Evans, Ky., 700 S.W.2d 399 (1985) recognizes a cause of action when an
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employee is terminated in contravention of statutory or constitutional provisions. The
Firestone doctrine was codified in KRS 342.197(l) insofar as it provides that no
employee shall be harassed, coerced, discharged or discriminated against in any
manner whatsoever for filing and pursuing a lawful claim under the Workers’
Compensation Act. See also KRS 61.102, the Whistleblower protection for public
employees, and the Equal Opportunity Employees Act in KRS 207.150 which prohibits
an employer from discharging an individual with disabilities unless a disability restricts
that individual’s ability to engage in a particular job or occupation for which he or she is
eligible. The creation of additional exceptions to the at-will doctrine has been rejected
by this Court in Boykins v. Housina Authority of Louisville, Ky., 842 S.W.2d 527 (1992).
Wymer cannot validly claim that she was discriminated against due to her
disability because she acknowledges that she was unable to perform her former job
duties. Thus, the circuit judge properly dismissed her disability discrimination claim.
We find no remedy in the Kentucky Civil Rights Act, KRS 344.020(1)(b), which protects
individuals from discrimination.
There is no breach of an implied contract of employment in this matter. Cf.
Firestone, supra; Shah v. American Synthetic Rubber Corp., Ky., 655 S.W.2d
489
(1983) is not applicable in this situation. The circuit judge correctly entered summary
judgment in favor of the employer in regard to the terminable-at-will issue.
III. Summary Judgment -Wrongful Discharge
We have divided our analysis of the summary judgment portion of this case into
the medical malpractice section and the claims arising from the allegations of wrongful
discharge. We have already reversed the summary judgment as to the medical
malpractice issues and now consider the wrongful discharge portion.
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It has long been held that CR 56.03 provides that summary judgment is
appropriate where there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. A well-supported motion for summary judgment
can terminate litigation when, as a matter of law, it appears that it would be impossible
for the responding party to produce evidence at trial warranting a judgment in its favor.
Steelvest. Inc. v. Scansteel Service Center, Ky., 807 S.W.2d 476 (1991); see also
Paintsville Hospital v. Rose, Ky., 683 S.W.2d 255 (1985). It should be noted that this
Court in Welch v. American Publishing Co., Ky., 3 S.W.3d 724 (1999) clarified the
situation by stating that Steelvest did not repeal CR 56.
Here, there is no evidence in the record which support the argument that the
hospital retaliated against Wymer by discharging her for pursuing the workers’
compensation claim. Clearly, KRS 342.197 protects workers from being harassed,
coerced, discharged or discriminated against for pursuing a workers’ compensation
claim in this type of situation. The party opposing summary judgment cannot rely on
their own claims or arguments without significant evidence in order to prevent a
summary judgment. See Harker v. Federal Land Bank of Louisville, Ky., 679 S.W.2d
226 (1984), an age discrimination case in which the specific issue was whether the
circuit court committed reversible error in ruling there was no genuine issue as to any
material fact. All doubts must be resolved against the movant. In this case, the
evidence demonstrates that the hospital terminated the employment of Wymer on the
basis that she could no longer perform the duties of her position as an operating room
technician. Her work related shoulder-injuries limited her ability to perform certain
physical tasks which were essential to the operating room duties. Wymer admitted that
there was no available position which she could perform.
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Wymer was terminated because she could not work and not because she was
disabled. The record indicates that Wymer could not perform the essential duties of any
position within the hospital system, with or without reasonable accommodation.
Reasonable accommodation does not include creating a new job. See Magel v. Federal
Reserve Bank of Philadelphia, 776 F. Supp. 200 (E.D.Pa. 1991) affirmed in 5 F.3d
1490 (3rd Cir. 1993).
The United States Sixth Circuit Court of Appeals has determined that an
employer has no obligation under disability discrimination to accommodate a disabled
person beyond reasonable accommodation. Hoskins v. Oakland County Sheriff Dept.,
227 F.3d 719 (6th Cir. 2000). In addition, there is no evidence in the record to support
the claim that her employment was terminated because she filed a medical negligence
lawsuit against the hospital. See Boykins, supra.
The circuit court properly granted the summary judgment with regard to claims of
false light, intentional infliction of emotional distress or outrage, fraud, promissory
estoppel and defamation.
The trial court properly dismissed the claim for breach of implied contract
resulting from her termination because she was an at-will employee and thus the
hospital could terminate her at any time. Her discharge was not for refusal to break the
law or for exercising her employment related rights.
Accordingly, this Court affirms so much of the Court of Appeals decision as
relates to the employment at-will termination and the claims arising from such
termination. The decision of the Court of Appeals and the circuit court regarding the
dismissal of medical malpractice claims is reversed and the matter is remanded to the
circuit court for trial or other appropriate disposition.
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Lambert, C.J., Graves, Keller, Stumbo and Wintersheimer, JJ., concur.
J., files a separate opinion, concurring in part and dissenting in part, in which
Johnstone, J., joins.
COUNSEL FOR APPELLANTS:
Gregg Y. Neal
Neal & Davis, PLLC
931 Main Street, P.O. Box 40
S hel byville, KY 40066-0040
COUNSEL FOR APPELLEES:
Jon L. Fleischaker
Cheryl R. Winn
Dinsmore & Shohl
2000 Meidinger Tower
Louisville, KY 40202
C. Alex Rose
Russell H. Saunders
Frank Miller, Jr.
Karen L. Keith
Weber & Rose, P.S.C.
2700 Aegon Center
400 W. Market Street
Louisville, KY 40202
Gary W. Anderson
Anderson Law Center
333 Guthrie Green
Louisville, KY 40202
Timothy P. O’Mara
Dennis D. Murrell
Middleton & Reutlinger
2500 Brown & Williamson Tower
Louisville, KY 40202
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Cooper,
RENDERED: MAY 24,200l
TO BE PUBLISHED
1999-SC-1133-DG
LINDA S. WYMER; AND
GARY E. WYMER
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
98-CA-0986-MR
SHELBY CIRCUIT COURT NO. 95Cl-243
V.
JH PROPERTIES, INC.,
D/B/A JEWISH HOSPITAL SHELBYVILLE;
ERIC NOVOSEL; WANDA MOORE; LORI FRYREAR;
DEBBIE MOLNAR; CAROL HAWES; AND
JOHN KURNICK
APPELLEES
OPINION BY JUSTICE COOPER
CONCURRING IN PART AND DISSENTING IN PART
I concur with the majority opinion insofar as it affirms the summary dismissal of
Linda Wymer’s claim for wrongful discharge. I dissent insofar as it reverses the
summary dismissal of her claim for common law negligence. The issue is whether that
claim is precluded by the so-called “exclusive remedy” provision of the Workers’
Compensation Act.
Wymer was employed by JH Properties, Inc., d/b/a Jewish Hospital (“Jewish”),
as an operating room technician. She was initially injured on March 23, 1993 when she
was kicked in the left shoulder by a patient awakening from anesthesia. It is undisputed
that this injury was work-related and covered by Jewish’s workers’ compensation selfinsurance coverage. KRS 342.340(l). At the time of Wymer’s injury, a company
identified as “Alexsis” was the third-party administrator of Jewish’s workers’
compensation self-insurance. Subsequently, Jewish hired its own workers’
compensation specialist, Lori Fryrear, as an in-house administrator.
Wymer was treated by Dr. Carroll Witten, Jr., who ultimately diagnosed a torn
rotator cuff, performed corrective surgery in June 1994, and prescribed post-operative
physical therapy. The physical therapy was administered at Jewish’s Shelbyville
location by Eric Novosel, also an employee of Jewish. Wymer alleges that while
administering this therapy, Novosel negligently caused her deltoid muscle to be
separated from her acromium, necessitating additional surgery by Dr. Thomas Loeb in
January 1995.
Wymer filed a workers’ compensation claim against Jewish for her March 23,
1994 injury. All of Dr. Wit-ten’s and Dr. Loeb’s medical bills were submitted to and paid
under Jewish’s workers’ compensation self-insurance coverage. The “patient
information” form signed by Wymer during her first visit to Dr. Loeb’s office on
September 16, 1994 recites that she was injured “on the job” on March 23, 1993, and
that the responsible insurers were Jewish Hospital and Alexsis. On September 16,
1995, two months after filing this tort action, Wymer signed another patient information
form in Dr. Loeb’s office, again stating that her injuries were incurred “on the job” on
March 23, 1993. Wymer signed yet another patient information form in Dr. Loeb’s office
on July 17, 1996, again indicating that her injury occurred “on the job” on March 23,
1993 and that the primary insurance company was “Risk Management W/C, Jewish
Hospital (Lori Fryrear).”
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Jewish paid workers’ compensation benefits to Wymer for temporary total
disability until May 15, 1995. Payments were terminated pursuant to a written opinion
from Dr. Loeb that Wymer could “return to work two handed by the middle of May
1995.” By letter dated May 17, 1995, Lori Fryrear offered to settle Wymer’s workers’
compensation claim for the monetary equivalent of 20% permanent partial disability.
This offer was premised upon a written opinion from Dr. Loeb that Wymer’s permanent
disability rating would be in the range of 15% to 20% to the body as a whole. The
record does not reflect whether the claim was ever settled.
On June 14, 1995, Wymer sued Novosel in tort for the injuries allegedly inflicted
by him in August 1994. She also sued Novosel’s (and her) employer, Jewish, for
vicarious liability.
KRS 342.690(l) provides in pertinent part as follows:
If an employer secures payment of compensation as required by this
chapter, the liability of such employer under this chapter shall be exclusive
and in place of all other liabilitv of such employer to the employee, his
legal representative, husband or wife, parents, dependents, next of kin,
and anyone otherwise entitled to recover damages from such employer at
law or in admiralty on account of such injury or death. . . . The exemption
from liability given an employer by this section shall also extend to such
employer’s carrier and to all emplovees, officers or directors of such
employer or carrier. . . . (Emphasis added.)
KRS 342.700(l) provides in pertinent part as follows:
Whenever an injury for which compensation is payable under this chapter
has been sustained under circumstances creating in some other person
than the employer a legal liability to pay damages, the injured employee
may either claim compensation or proceed at law by civil action against
the other person to recover damages, or proceed both against the
emolover for comoensation and the other oerson for damaaes, but he
shall not collect from both. . If compensation is awarded under this
chapter, the employer . . . having paid the compensation or having
become liable therefor, may recover in his or its own name or that of the
injured employee from the other person in whom legal liability for
damages exists, not to exceed the indemnity paid and payable to the
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injured employee, less the employee’s legal fees and expenses.
(Emphasis added.)
Read together, these two statutes have been held to preclude application of the
so-called “dual capacity” doctrine in Kentucky. Borman v. Interlake. Inc., Ky. App., 623
S.W.2d 912 (1981).
Under this doctrine, an employer normally shielded from tort liability by the
exclusive remedy principle may become liable in tort to his own employee
if he occupies, in addition to his capacity as employer, a second capacity
that confers on him obligations independent of those imposed on him as
employer.
Id. at 913 (quoting A. Larson, 2A Law of Workmen’s Compensation § 72.80, at 14-112
(1976)). That is precisely what the majority opinion permits Wymer to do here
Because Jewish occupied, in addition to its capacity as Wymer’s employer, a second
capacity as treatment provider, the majority essentially holds that the exclusive remedy
provisions of the two statutes do not apply. If that is to be our holding, we need to
specifically overrule Borman, supra, so as not to leave this area of the law in a state of
confusion. However, I believe Borman accurately interprets our statutory scheme.
What other meaning can be ascribed to the words, “shall be exclusive and in place of
all other liability”?
Admittedly, there are circumstances in which application of the “dual capacity”
doctrine might have some equitable appeal (though workers’ compensation is a
creature of statute, not equity). For example, in Sharp v. Ford Motor Comoany, 66
F.Supp.2d 867 (W.D. Ky. 1998), affd, 194 F.3d 1314 (6th Cir. 1999), it was held that
Ford, which was the “up-the-ladder” employer of a subcontractor’s employee, was
entitled to “exclusive remedy” protection, Fireman’s Fund Insurance Co. v. Sherman &
Fletcher, Ky., 705 S.W.2d 459 (1986), against a products liability action brought by the
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employee for injuries sustained while operating a Ford-manufactured vehicle on Ford’s
job. The injured worker had filed for and received workers’ compensation benefits for
his injury, but from his own employer, the subcontractor, not from Ford. Still, Ford was
held entitled to “exclusive remedy” immunity. However, here, as in Borman, supra,
Wymer applied for and received workers’ compensation benefits from the same
employer she now seeks to sue and for the same injury that is the subject of this suit.
She recovered workers’ compensation benefits not only for her original March 23, 1993
injury, but also for the injury which she attributes to Novosel’s negligence in August
1994. Dr. Loeb treated Wymer only after the August 1994 incident; yet, all of his
medical bills were submitted to and paid under Jewish’s workers’ compensation selfinsurance coverage; and Jewish paid temporary total disability benefits to Wymer after
August 1994 and until May 1995. And for good reason.
In Elizabethtown Sportswear v. Stice, Ky. App., 720 S.W.2d 732 (1986), an
employee sustained a work-related back injury and received treatment for recurring
pain.\ A year later, she underwent a lumbar myelogram and died from a severe allergic
reaction to the opaque dye. The issue was whether her former employer was liable for
death benefits when the death did not result directly from the injury, but from treatment
of the injury. Stice noted:
Professor Larson tells us that it is now uniformly held that
aggravation of the primary injury by necessary medical or surgical
treatment is compensable. He cites numerous examples, including
exacerbation of a claimant’s condition, or death, resulting from antibiotics,
antitoxins, sedatives, pain-killers, anesthesia, electrical treatment, or
corrective or exploratory surgery.
Id. at 734 (citing A. Larson, 1 Workmen’s Compensation Law § 13.21 (1985)). The
employer in Stice was required to pay workers’ compensation death benefits for the
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employee’s death. Id. See also Pond Creek Collieries Co. v. LaSantos, 307 Ky. 866,
212 S.W.2d 530 (1948), wherein the employee sustained a hip fracture when he fell out
of a hospital bed while being treated for work-related injuries.
[I]f the hip fracture was not sustained in the fall from the hoist car, it
occurred during treatment in such a manner as to constitute in effect an
aggravation of the original injuries. . . . Clearly, if this was a subsequent
fracture, it resulted from his medical treatment as an aggravation of his
initial injuries. In such cases, the ultimate disability should be
compensable.
Id., 212 S.W.2d at 532.
Finally, KRS 342.020(7)
(formerly (3)) provides:
No action shall be brought against any employer subject to this chapter by
any person to recover damages for malpractice or improper treatment
received by any employee from any physician, hospital, or attendant
thereof.
As pointed out in Stice, supra:
This statute has been interpreted to mean that a civil action cannot
be brought against the employer for damages caused by a physician’s
malpractice or improper treatment, not that a claim for worker’s
compensation benefits cannot be brought by the employee to recover for
additional disability resulting from treatment which aggravates a workrelated injury.
Id. at 734 (citing McCorkle v. McCorkle, Ky., 265 S.W.2d 779 (1954) and Black
Mountain Corp. v. Middleton, 243 Ky. 527, 49 S.W.2d 318 (1932)).
Jewish was clearly liable in workers’ compensation for any injury inflicted upon
Wymer by Novosel during treatment rendered for her March 23, 1993 work-related
injury. If the August 1994 injury had been inflicted by “some other person” than a
Jewish employee, Wymer could have sued “such other person” per KRS 342.700(l);
but Jewish would have been subrogated against that person for the workers’
compensation payments it made to her. An employer, of course, cannot be subrogated
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against itself for its own workers’ compensation payments. Being liable for and having
paid workers’ compensation benefits to Wymer for any injuries caused by the
negligence of Novosel, Jewish cannot now be held vicariously liable in tort for those
same injuries. Nor is Novosel liable in tort to Wymer, since KRS 342.690(l) also
extends “exclusive remedy” immunity to the employer’s other employees.
As for Gary Wymer’s claim for loss of consortium, I ascribe to Justice Leibson’s
view that a loss of consortium claim is derivative of the claim of the injured spouse.
Moore v. State Farm Ins. Co, Ky., 710 S.W.2d 225, 227 (1986) (Leibson, J.,
concurring). If the injured party’s claim is barred, so should be the claim for loss of
consortium.
Accordingly, I dissent from that portion of the majority opinion that reverses the
dismissal of Wymer’s common law negligence claim.
Johnstone, J., joins this opinion.
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