A new trend in Kentucky has recently emerged where plaintiffs are attempting to base their workers' compensation claims on evidence that their employers allegedly mistreated them while they were on light duty or exercising some other type of accommodation after a work-place injury. Whether purposeful or accident, plaintiffs are blurring the lines between workers' compensation retaliation and disability discrimination. When trial courts let this evidence in, they are essentially allowing plaintiffs to morph a workers' compensation retaliation claim into a disability discrimination claim in actions where plaintiffs would not otherwise be permitted to plead disability discrimination because they do not have a “disability” under the Americans with Disabilities Act (“ADA”). Instead of focusing their evidence on whether the pursuit of workers' compensation benefits was a substantial and motivating factor in the adverse employment action, plaintiffs are focusing on evidence that they were mistreated while on light duty or while exercising some other type of accommodation after a work related injury. And some Kentucky trial courts are permitting it. It is important to curtail this type of evidence from the very start of an action that includes a claim for workers' compensation retaliation but does not include a disability discrimination claim.
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