Quick Answer
If you were an employee rather than an independent contractor, Kentucky workers’ compensation should cover a crash that happened in the course of your work, and fault does not matter to that claim. What it pays is limited: medical treatment under KRS 342.020(1) and income benefits under KRS 342.730(1), which for total disability is two thirds of your average weekly wage subject to a cap. Nothing in the chapter pays you for pain and suffering. That is why the second claim matters. Under KRS 342.700(1) you may claim compensation, or proceed by civil action against a third party who is legally liable for the crash, or do both, though you cannot collect twice, and the carrier that paid your benefits can recover what it paid out of that third party recovery. On deadlines, KRS 342.185(1) requires notice of the accident to your employer as soon as practicable and an application for adjustment of claim within two years of the accident, while the claim against the at fault driver runs on the separate two year motor vehicle period in KRS 304.39-230(6).
Driving a truck for a living exposes you to risk every day that most jobs do not carry, and the exposure is not only about your own driving. Crashes happen because of the weather, because of other motorists, because of equipment failure on the truck or the trailer, and because of what happened at a loading dock before the wheels turned. If you suffer an injury from a truck accident serious enough to keep you off the road, workers’ compensation benefits are usually the first money that arrives, and often not the last.
Are You an Employee or Independent Contractor?
Truck drivers of all kinds can receive workers’ compensation benefits, but only if they are employees rather than independent contractors. Companies routinely argue that their drivers are contractors in order to avoid paying benefits, and they do not always win.
The label on your paperwork is not what decides it. KRS 342.640 sets out who counts as an employee subject to the chapter, except as exempted under KRS 342.650, and the language is broader than most drivers expect. KRS 342.640(1) covers every person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, along with helpers and assistants of employees employed with the actual or constructive knowledge of the employer. KRS 342.640(4) separately covers every person performing service in the course of the trade, business, profession or occupation of an employer at the time of the injury.
Read those two clauses again, because they are the whole argument. A contract of hire can be implied rather than written, and the fourth clause looks at what you were actually doing when you were hurt rather than at what a form said. So receiving a 1099 instead of a W-2 does not settle the question, and you may have been misclassified. The facts that carry weight are the practical ones: how you were paid, who controlled your schedule and your route, who dispatched you, who owned and maintained the truck and the trailer, and whether you could realistically work for anyone else.
If your employer never secured coverage at all, do not assume you are out of options. That situation is addressed below, and Kentucky law treats it very differently.
What About When You Are at Fault?
Fault does not affect a workers’ compensation claim. The system is designed as a trade. You give up the right to sue your employer in tort and you receive benefits without having to prove that anyone was negligent.
That trade is written into KRS 342.690(1). Where an employer secures payment of compensation as the chapter requires, the employer’s liability under the chapter is exclusive and in place of all other liability of that employer to the employee, the employee’s legal representative, spouse, parents, dependents, next of kin and anyone otherwise entitled to recover damages from the employer on account of the injury or death. The same subsection extends that exemption to the employer’s insurance carrier and to the employer’s other employees, officers and directors, with one exception: the exemption does not apply where the injury or death is proximately caused by the willful and unprovoked physical aggression of such an employee, officer or director.
There is an important flip side. Under KRS 342.690(2), where an employer fails to secure payment of compensation as the chapter requires, an injured employee, or the legal representative if death results, may claim compensation under the chapter and in addition may maintain an action at law for damages, with credits applied between the two so there is no double recovery. In that action the employer may not plead as a defense that the injury was caused by the negligence of a fellow servant, that the employee assumed the risks of the employment, or that the injury was due to the employee’s own contributory negligence. An uninsured employer is in a far worse position than it may realize, and an injured driver is in a far better one.
Beyond that, never simply assume the crash was your fault. It is common for an investigation to find another cause. The truck may have had a defect, the trailer may have been loaded improperly, a repair may have been done badly, brakes or tires may have been out of service, or another motorist may have created the emergency. If someone other than your employer was responsible, there may be a claim worth far more than the compensation benefits.
What Does Kentucky Workers’ Compensation Actually Pay?
This is the part drivers are rarely told at the outset, and it explains why the third party claim matters so much.
Medical treatment is covered without cost sharing. KRS 342.020(1) requires the employer to pay, in addition to all other compensation under the chapter, for the cure and relief from the effects of the injury, the medical, surgical and hospital treatment, including nursing, medical and surgical supplies and appliances, reasonably required at the time of injury and thereafter for the time the statute allows. KRS 342.020(5) provides that medical services and treatment under the chapter shall not be subject to copayments or deductibles. Duration is limited in some claims: KRS 342.020(3)(a) provides that in permanent partial disability claims not involving one of the injuries listed in KRS 342.020(9), the employer’s obligation continues for seven hundred eighty weeks from the date of injury, with a process in KRS 342.020(3)(c) for applying to continue benefits beyond that period where continued treatment is reasonably necessary and related to the work injury. In permanent total disability claims, KRS 342.020(2) continues the obligation for as long as the employee is disabled.
Income benefits replace part of your wages, not all of them. Under KRS 342.730(1)(a), for temporary or permanent total disability the benefit is sixty six and two thirds percent of your average weekly wage, subject to a ceiling of one hundred ten percent of the state average weekly wage and a floor of twenty percent of it. Under KRS 342.730(1)(b), permanent partial disability benefits are two thirds of the average weekly wage capped at eighty two and one half percent of the state average weekly wage, multiplied by the permanent impairment rating and then by a statutory factor. KRS 342.730(1)(d) limits the compensable permanent partial disability period to four hundred twenty five weeks where the disability rating is fifty percent or less and five hundred twenty weeks where it is greater than fifty percent. And KRS 342.730(4) provides that all income benefits terminate when the employee reaches age seventy, or four years after the injury or last exposure, whichever occurs last.
Two consequences follow. First, even a strong compensation claim leaves a gap: a third of your wages, and everything the chapter does not address. Second, and this is the point, Chapter 342 provides medical benefits and income benefits, and it does not provide payment for pain and suffering, for disfigurement as such, or for the loss of the life you had before. Those are damages available only in a tort claim against someone who is not your employer. The full range of what a tort claim can include is set out in what you can collect from a Kentucky personal injury case.
Filing a Claim Against Another Driver
Receiving workers’ compensation benefits does not take away your right to pursue the other driver, and Kentucky says so expressly.
KRS 342.700(1) provides that whenever an injury for which compensation is payable under the chapter has been sustained under circumstances creating in some person other than the employer a legal liability to pay damages, the injured employee may either claim compensation, or proceed at law by civil action against that other person to recover damages, or proceed both against the employer for compensation and against the other person for damages, but shall not collect from both. If you elect to proceed by civil action, the same subsection requires you to give due and timely notice to the employer and to the special fund of the filing of the action, and it states that the notice shall conform in all respects to the requirements of KRS 411.188(2), which is the certified mail subrogation notice used in ordinary injury litigation.
The same subsection creates the lien you will hear about. Where compensation has been awarded or paid, the employer, its insurance carrier, the special fund, the Kentucky coal workers’ pneumoconiosis fund and the uninsured employer’s fund, or any of them, may recover in their own name or in the name of the injured employee from the person in whom legal liability for damages exists, not to exceed the indemnity and medical expenses paid and payable to or on behalf of the injured employee, less a pro rata share of the employee’s legal fees and expense. In practical terms the carrier gets paid back out of your third party recovery, reduced by its share of the cost of obtaining it, so how and when the third party claim is resolved directly affects what reaches you.
This is also where the two claims run on different clocks. The compensation claim follows KRS 342.185(1). The claim against the at fault motorist follows KRS 304.39-230(6), under which a motor vehicle tort action must be commenced no later than two years after the injury or the death, or after the date of issuance of the last basic or added reparation payment, whichever occurs later. They are both two year rules but they do not start from the same events, and it is possible to preserve one while quietly losing the other. There may also be more than one third party: in trucking, the tractor, the trailer, the maintenance provider, the shipper and the loading crew are frequently different companies, which is a subject we cover in more reasons to hire a lawyer after a commercial truck accident.
Because the third party claim is an ordinary tort claim, the ordinary Kentucky rules apply to it, including apportionment of fault. Under KRS 411.182(1) and (2) the fact finder assigns a percentage of the total fault to each party, and KRS 411.182(3) provides that a party allocated less than all of the fault cannot be held jointly liable beyond its proportionate share. How much your own conduct is said to have contributed therefore matters to the third party case even though it is irrelevant to the compensation claim, and we look at that in what if I am partly at fault.
Steps to Take After an Accident
What you do in the first days affects both claims. Request a police report even where the crash looks minor, and take your own photographs of the scene, the vehicles, the load and the road.
Get medical attention promptly to have your injuries assessed. You need records that document your condition immediately after the crash, both for treatment and because a gap between the crash and the first examination is the first thing anyone defending either claim will point at.
Report the crash to your employer. KRS 342.185(1) requires that no proceeding for compensation be maintained unless notice of the accident was given to the employer as soon as practicable after it happened, and unless an application for adjustment of claim was filed with the department within two years after the date of the accident, or within two years after the death where death results. The same subsection adds a wrinkle worth knowing: where payments of income benefits have been made, the application does not have to be filed within that period, but becomes required within two years following the suspension of payments or within two years of the date of the accident, whichever is later. So if benefits start and then stop, a new two year period can run from the stoppage. Do not treat voluntary payments as a substitute for filing.
Where a death resulted from a work crash, the family faces a different set of rules again, including the exclusive remedy in KRS 342.690(1) on one side and the third party route in KRS 342.700(1) on the other. The Kentucky wrongful death framework, including who has authority to bring the claim, is described in what is a wrongful death case.
Finally, getting everything you are entitled to across two overlapping claims is difficult without help. Look for an attorney with trucking experience, because different regulations apply than in an ordinary car crash and the evidence is different too, including driver logs, inspection and maintenance files, dispatch records and electronic data from the truck. Your attorney can gather that documentation, retain the right experts, coordinate the compensation claim with the third party claim so that the carrier’s lien does not swallow the recovery, and keep both deadlines from expiring.
Hurt in a Truck Crash on the Job in Kentucky?
Two claims, two sets of rules, two deadlines and a carrier with a lien on the second one is a lot to manage from a hospital bed. The Fleck Firm, PLLC was founded by attorney Tyler M. Fleck, a U.S. Army veteran who built his practice to serve people throughout Kentucky. If you were hurt driving for work, we will look hard at whether the contractor label your company put on you actually holds up, make sure the medical and income benefits you are owed are being paid, identify every party other than your employer whose conduct contributed, and handle the notice and lien mechanics that decide how much of a third party recovery you keep. The first consultation is free and we work on a contingency fee, so there is no fee unless we win for you. Call our office, and if you cannot come to us we will come to you, including at the hospital or your home.
