Workers’ Compensation Exclusive Remedy Provisions for Liability does not apply to Governmental Agencies: DAVIS V. HENSLEY (SC 6/19/2008)

DAVIS V. HENSLEY
WORKERS COMP:  Workers’ Compensation Exclusive Remedy Provisions for Liability does not apply to Governmental Agencies
2007-SC-000066-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY HARRIS (SPECIAL JUSTICE); MINTON, SCHRODER NOT SITTING
BOONE COUNTY
DATE RENDERED: 6/19/2008

In a tort action, both the employer and an up-the ladder general contractor are protected from liability by the injured worker if the employer or its general contractor have workers’ compensation coverage. This case holds that a governmental entity, in this case the Kentucky Department of Transportation, does not enjoy immunity under KRS 342.690 because it is not liable for workers’ compensation benefits as a general contractor. The Court based this on the definition in KRS 342.610 of up-the-ladder contractors as “persons”, and KRS 342.630 defines “persons” and governmental entities separately. Thus the government cannot be an up-the-ladder contractor because it is not a “person”. The implications of this decision could be that the state no longer has up-the-ladder responsibility to cover employees of subcontractors for the state who are uninsured for workers’ compensation. However, the state will have to cover those workers through the Uninsured Employer’s Fund. This decision does not address sovereign immunity, which should still apply to the Transportation Cabinet.

By Peter Naake, ed.