Suing Over a Work Injury in Kentucky

If an employer has workers' compensation coverage, the employer's liability under the workers' comp law replaces all other liability to the worker and family for the injury or death; the protection also covers the insurer and co-employees, officers and directors. Exceptions: a co-employee, officer or director can be sued when the injury was caused by their willful and unprovoked physical aggression; if the employer deliberately intended to injure or kill the worker, the worker or dependents may sue the employer instead of taking compensation; and if the employer failed to secure compensation, the worker may claim compensation and also sue for damages.

When someone other than the employer is legally liable for the injury, the worker may claim compensation, sue the other person, or do both, but may not collect from both. A worker who sues must give due and timely notice of the suit to the employer and the special fund. The employer, its insurer and certain state funds that paid or are liable for compensation may recover from the third party, up to the income and medical benefits paid and payable, less a pro rata share of the worker's legal fees and expenses.

If an employer fails to secure workers' compensation, the worker may claim compensation and also sue the employer for damages, and the employer may not defend by blaming a co-worker, assumption of risk or the worker's own negligence. The Uninsured Employers' Fund pays compensation when an employer defaults because it had no coverage, and the employer must repay the fund. When a claim is filed against an uninsured employer, the commissioner records a lien on the employer's assets in favor of the fund for up to 10 years.