Who’s a ‘Contractor’ for ‘Up-the-Ladder’ Exclusive Remedy Immunity in Kentucky?

Do You Know the Rule?

Under Kentucky law, a party against which a worker makes a claim, but which is not the direct employer of the claimant, may claim "up-the-ladder immunity" by first presenting proof it secured workers' compensation coverage and, second, by proof it is a contractor.

A party is a "contractor" under Bluegrass State law if it contracts to have work performed of a kind which is a regular or recurrent party of the work of the trade, business, occupation, or profession of the party. The term "regular" refers to work that is "customary, usual or normal."

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The question turns on whether the work was of a kind that the company would normally expect or be expected to perform with employees rather than outside contracts, and relevant factors regarding the work of the business include nature, size, scope, and whether it is equipped with the skilled manpower and tools to handle the task the independent contractor is hired to perform.

Relevant Cases

General Electric Co. v. Cain, 236 S.W. 3d 579 (Ky. 2007). Answering the question of whether a contractor is subject to exclusive remedy rules depends on whether the work performed falls squarely within the definition of "regular or recurrent" aspects of operating a business. The test is "relative, not absolute."

Sattenberg v. University Medical Center, Inc., No. 2024-CA-0017 (MR) (Ky. App. 01/16/26, unpublished). A medical center contracted with both of a radiologist's employers to perform radiology services, indicating that the radiologist's work was a "regular or recurrent" part of the medical center's work and was statutorily necessary for the medical center's operations. Thus, the radiologist was subject to the state's exclusive remedy bar and unable to bring a tort action after he fell over exposed cords at the center and sustained severe back and head injuries, causing a traumatic brain injury, vision deficits, a ruptured lower back disc, and chronic pain.

Mullins-Smith v. Appalachian Reg'l Healthcare, Inc., No. 2011-CA-002225-MR (Ky. App. 02/01/13, unpublished). The plaintiff was an employee of Fresenius Medical Care, an entity that contracted with Appalachian Regional Healthcare, Inc. to provide dialysis services to patients. After being injured while working with a patient at ARH, the plaintiff filed a workers' compensation claim against Fresenius and a tort claim against ARH. The court affirmed the trial court's grant of summary judgment for ARH on the basis that ARH fit the definition of a "contractor" or that it was the "up-the-ladder" employer entitled to exclusive remedy immunity. Specifically, the court stated that "the rendering of medical treatment would logically seem to be both regular and recurrent activity for a hospital."

Kubas v. Klondike Manor, LLC, No. CIV A 307-CV-148-H (W.D. Ky. 01/25/08). The plaintiff was an employee of SharpCare, an entity that contracted with Klondike Manor to provide wound care at the facility. After being injured at work, she filed a workers' compensation claim against SharpCare and a tort claim against Klondike Manor. Applying Cain, the court found that the work performed "falls squarely within the definition of `regular or recurrent' aspects of operating a skilled nursing facility," and applied exclusive remedy immunity to Klondike Manor.

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