RENDERED: JANUARY 15, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1427-MR
HIGHLAND HOSPITAL APPELLANTS
CORPORATION AND
CONSOLIDATED HEALTH
SYSTEMS, INC.
APPEAL FROM FLOYD CIRCUIT COURT
v. HONORABLE JOHNNY RAY HARRIS, JUDGE
ACTION NO. 16-CI-00030
EULA LAWSON APPELLEE
OPINION AND
ORDER DISMISSING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
COMBS, JUDGE: The Appellants, Highlands1 Hospital Corporation and
Consolidated Health Systems, Inc., appeal from the denial of their motion for
summary judgment which was based upon their assertion of the defense of
1
The body of the notice of appeal identifies this hospital as “Highland Hospital Corporation”
while the caption reads “Highlands Hospital Corporation.”
immunity under KRS2 Chapter 342, the Kentucky Workers’ Compensation Act
(KWCA). After our review, we conclude that the trial court’s order is a non-
appealable interlocutory order because it did not resolve the issue of immunity.
Therefore, we must dismiss this appeal.
Appellee, Eula Lawson (Lawson), worked as a licensed practical
nurse (LPN), at Highlands Regional Medical Center, which, according to the
complaint, is operated by Highlands Hospital Corporation and Consolidated Health
Systems, the Appellants herein. In her brief, Lawson asserts that:
Appellants . . . violated state law and acted so, as to
effectively terminate Ms. Lawson. KRS 216B.165.[3] . . .
Lawson worked for the hospital for over a decade before
being forced to quit, after she repeatedly voiced patient
care concerns that went unaddressed by management. As
retaliation for making her patient care and safety concerns
2
Kentucky Revised Statutes.
3
Macglashan v. ABS Lincs KY, Inc., 448 S.W.3d 792, 793 (Ky. 2014), explains that:
Chapter 216B broadly covers the regulation of health care
facilities and services in Kentucky. KRS 216B.165(1) requires
hospital employees to report circumstances in which “patient
safety” or “quality of care” is “in jeopardy.” KRS 216B.165(3)
provides a kind of whistle-blower protection for health facility
workers. It prohibits a health care facility or service from
retaliating against an employee who reports any deficiencies of the
facility or service pursuant to KRS 216B.165(1). However, KRS
Chapter 216B does not prescribe any specific civil remedies for the
whistle-blowing employee who suffers retaliation for making such
a report. For remedies, one must look to the generic provisions of
KRS 446.070 which states: “A person injured by the violation of
any statute may recover from the offender such damages as he
sustained by reason of the violation, although a penalty or
forfeiture is imposed for such violation.”
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known, Lawson was retaliated against and given jobs that
were too difficult for one LPN to perform alone, too many
patients spaced physically too far apart in the hospital, and
even asked to violate nursing practice standards. The
retaliation was focused on forcing her to do physically
challenging tasks because Highlands was aware that she
had some physical issues that caused her pain.
(References to record omitted.)
On July 30, 2019, Appellants filed their third motion for summary
judgment that is the subject of this appeal. In their supporting memorandum,
Appellants argued that:
As all of [Lawson’s] damages actually stem from work-
related injuries, the Kentucky Workers’ Compensation
Act provides Lawson an exclusive remedy for her
damages, and Highlands is immune from liability as a
matter of law.
Appellants explained that although they previously had sought
summary judgment,4 that motion was filed before Lawson’s deposition “in which
she testified that she was physically injured as a result of what she described as a
retaliatory workload. Based on that testimony Highlands now moves the Court for
a summary judgment pursuant to the exclusive remedy found in KRS
4
Appellants initially filed a motion for partial summary judgment and argued that Lawson’s
constructive discharge claim should be stricken because she voluntarily resigned by letter dated
January 26, 2015, in which she stated that she was resigning because of left-foot pain. By order
entered on September 11, 2017, the trial court denied that motion. Appellants filed a renewed
motion for partial summary judgment on Lawson’s claim that she was terminated or
constructively discharged, arguing that Social Security records established that she voluntarily
resigned because she could no longer work due to chronic pain. By order entered April 11, 2018,
the trial court denied the renewed motion for partial summary judgment.
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342.690(1).[5]” Appellants argued that “because Lawson suffered physical injuries
from the increased workload, she is prohibited from recovering under KRS
216B.165 for alleged retaliation.” Appellants also argued that Lawson could not
prevail on a claim for punitive damages under KRS 216B.165.
In her Response, Lawson asserted as follows:
While Defendant might prefer defending against a
workers’ compensation claim, that is not what this action
is, and no amount of arguing by the Defendant can
change a whistleblower and retaliation claim under KRS
216B.165(3) into some other type of case.
Lawson asserted that Appellants “retaliated against a whistleblower
and must be found liable for that wrongful action, regardless of whether that
whistleblower was partially disabled when the retaliation incepted or not.”
Lawson explained that she:
testified in her deposition that she had worked for years
with foot pain and continued to work after she left
Highlands. She did not file a worker’s compensation
claim and did not assert in her complaint that she was
suing the Defendant for a work related injury.
Lawson contended that “[g]enuine issues of material fact exist with
regard to [her] injuries, the mechanism of injury, the impact and effect of the
5
KRS 342.690(1) provides in relevant part: “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 the employee . . . entitled to recover damages
from such employer at law or in admiralty on account of such injury or death.”
-4-
retaliatory actions by Defendant, the constructive discharge, and the attempt by
Defendant to force a nurse to risk patient care or lose her job.”
The motion was heard on August 27, 2019. At the close of the
hearing, the trial court denied Appellants’ motion, explaining as follows:
I read your brief and I was almost convinced, but I still
don’t think the additional duties put forth -- what Mr.
what -- the way the Complaint was pled, the additional
duties that were retaliatory there’s a question of fact as to
whether or not those additional duties caused an injury
which would be in retaliation. In the light most favorable
to the Plaintiff, I’m going to overrule it.
On September 16, 2019, the trial court entered its written order denying the motion
for summary judgment, providing as follows:
Defendants Highlands Hospital Corporation and
Consolidated Health Systems, Inc. (collectively “the
Defendants”) having moved this Court to grant it a
summary judgment on all claims asserted against them in
this matter based on immunity pursuant to KRS
342.640(1), the Court having heard and considered the
arguments of the Parties, and having been otherwise well
and fully advised,
IT IS HEREBY ORDERED that Defendants’
Motion for Summary Judgment is DENIED.
(Emphasis original.)
Appellants have appealed from this order. They argue that Lawson’s
claims are barred by the exclusivity provision of the KWCA; that KRS 216B.165
and KRS 446.070 do not provide Lawson an escape from KWCA exclusivity; and
that there is no exception in the KWCA for the claims asserted in this action.
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Appellants’ arguments and their various subparts all pertain to immunity. 6 But, the
trial court did not make a ruling on the issue of immunity.
In Chen v. Lowe, 521 S.W.3d 587 (Ky. App. 2017), Chen filed a
motion to dismiss on grounds of immunity under CR7 12.02. That motion on the
pleadings was converted into a motion for summary judgment because the circuit
court had considered matters outside the pleadings. The circuit court denied Chen’s
motion because it found that there were disputed issues of material fact regarding
Chen’s entitlement to qualified immunity. On appeal, this Court explained that:
It is a well-settled principle that an order denying a
dispositive motion is interlocutory and therefore
generally not appealable. Gooden v. Gresham, 6 Ky.Op.
560 (Ky. 1873); Parton v. Robinson, 574 S.W.2d 679,
684 (Ky. App. 1978); Druen v. Miller, 357 S.W.3d 547,
549 (Ky. App. 2011). “The Court of Appeals has
jurisdiction to review interlocutory orders of the Circuit
Court in civil cases, but only as authorized by rules
promulgated by the Supreme Court.” KRS 22A.020(2).
One such instance in which we have jurisdiction to
consider an interlocutory order is “an order denying a
substantial claim of absolute immunity . . . even in the
absence of a final judgment.” Breathitt Cty. Bd. of Educ.
v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). Therefore, if
we were to determine that the circuit court actually
denied [appellant’s] claim of immunity, we would have
jurisdiction to hear his appeal. It is under this theory that
[appellant] has brought this appeal.
6
We note that Appellants are both named in the notice of appeal and that their brief is captioned,
“Brief of Appellants.” However, in the brief itself, Appellants also refer to the hospital simply as
“Highlands.” For example, at pages 13 and 22, Appellants assert that “Highlands is entitled to a
summary judgment of no liability in this action.”
7
Kentucky Rules of Civil Procedure.
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In denying [the] motion to dismiss, however, the
circuit court did not make a final ruling on the issue of
qualified immunity. Rather, the court found that there
were disputed issues of material fact regarding
[appellant’s] entitlement to qualified immunity.
Therefore, the issue of [appellant’s] immunity remains
unresolved, and the order denying his motion to dismiss
is not immediately appealable.
Id. at 590 (footnote and citations omitted).
In the case before us, the trial court did not make a ruling on the issue
of immunity under the KWCA, an issue which remains unresolved. Accordingly,
the trial court’s order denying Appellants’ motion for summary judgment is not
immediately appealable, and we are without jurisdiction to review it. We are
compelled to dismiss.
This appeal is DISMISSED, and we so ORDER.
ALL CONCUR.
ENTERED: Jan. 15, 2021 ___________________________
COURT OF APPEALS JUDGE
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BRIEF FOR APPELLANTS: BRIEF FOR APPELLEE:
Jacinta F. Porter Earl M. McGuire
Lexington, Kentucky Prestonsburg, Kentucky
C. Laurence Woods, III
Louisville, Kentucky
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