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 self-insurance coverage. KRS 342.340(1). 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 Wit-ten, 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 Shelby-ville 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, *2011994 injury. All of Dr. Witten’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 28, 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).”
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(1) 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 liability 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 employees, officers or directors of such employer or carrier.... (Emphasis added.)
KRS 342.700(1) 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 employer for compensation and the other person for damages, 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 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).
*202Under 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 Company, 66 F.Supp.2d 867 (W.D.Ky.1998), aff'd, 194 F.3d 1314, 1999 WL 801554 (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 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 self-insurance 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 hable 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 *203the 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 compensa-ble.
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 Slice, 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 work-related 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(1); 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 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(1) 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.