2008-CA-000443 9/4/09 2009 WL 2834950 Released for pub. Opinion by Judge Caperton; Judges Thompson and Wine concurred. The court affirmed a judgment entered subsequent to a jury verdict finding that the employer retaliated or discriminated against a worker for filing a workers’ compensation claim
The Court first held that the worker met his burden to establish a prima facie case of discrimination Filing the workers’ compensation claim was an activity expressly protected under KRS 342.197, the employer knew that he had done so, the jury’s factual finding that the worker was terminated was not clearly erroneous, and the worker presented sufficient evidence for the jury to believe he was terminated in retaliation for seeking workers’ compensation benefits. The Court distinguished the case from Wymer v. JH Properties, Inc., 50 S.W.3d 195 (Ky. 2001), because the worker in the instant case was released to return to work without restriction, he said he wanted to try to perform the work and he may have been able to assume a light duty position. While the evidence might have been conflicting, it was for the jury to weigh the evidence and reach a conclusion. Therefore, the Court did not err in denying the employer’s motion for a directed verdict. The Court finally held that the award of attorney fees and costs were authorized by KRS 342.197(3) and the trial court did not abuse its discretion in making the award. Even so, the employer’s failure to name the worker’s attorney as a party to the appeal ultimately precluded review of the issue.
