RENDERED: JUNE 12, 2026; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0294-MR
ABRAM SCOTT ADKINS APPELLANT
APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE HOWARD KEITH HALL, JUDGE ACTION NO. 23-CI-00286
LAZARUS COAL, LLC APPELLEE
AND
NO. 2025-CA-0320-MR
LAZARUS COAL, LLC APPELLANT
APPEAL FROM PIKE CIRCUIT COURT v. HONORABLE HOWARD KEITH HALL, JUDGE ACTION NO. 23-CI-00286
ABRAM SCOTT ADKINS APPELLEE
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND A. JONES, JUDGES.
CALDWELL, JUDGE: Lazarus Coal, LLC (“Lazarus Coal”) appeals from a
judgment on a jury verdict in favor of Abram Scott Adkins (“Adkins”) on his
workers’ compensation retaliation claim. Adkins cross-appeals from the amount
set forth as the attorney fee award, asserting that the court failed to award a
reasonable amount for attorney fees.1 We affirm the judgment on the jury verdict,
but vacate the amount of attorney fees awarded and remand for re-consideration of
a reasonable attorney fee with specific findings and lodestar analysis.
FACTS
In late August 2022, Lazarus Coal hired Adkins to work as a roof
bolter. On February 16, 2023, a rock fell on Adkins’ arm as he worked in a
Lazarus Coal mine. No one disputes that Adkins suffered a work-related injury.
Adkins immediately told management about his arm injury.
Management instructed Adkins to exit the mine and obtain treatment, and another
1 Lazarus Coal’s Notice of Appeal was filed in the trial court record on February 27, 2025. This Court’s clerk docketed Lazarus Coal’s appeal as No. 2025-CA-0320-MR on or about March 12, 2025.
Adkins apparently tendered his Notice of Appeal to the circuit court nearly simultaneously with Lazarus Coal’s tendering its Notice of Appeal. Perhaps this is why neither party filed a Notice of Cross-Appeal. Adkins’ Notice of Appeal was filed in the trial court record on March 3, 2025. This Court’s clerk docketed Adkins’ appeal as No. 2025-CA-0294- MR on or about March 7, 2025. Because Lazarus Coal’s Notice of Appeal was filed first with the trial court, we later refer to Lazarus Coal as the Appellant/Cross-Appellee and to Adkins as the Appellee/Cross-Appellant.
-2- employee transported him to Pikeville Medical Center (“the medical center”).
After Adkins received stitches, a doctor released him to return to work the next day
but restricted him to light duty for several days.
On February 17th, Adkins returned to work and presented his work
release with restrictions. According to Adkins, mine superintendent Benny
Honaker (“Honaker”) said Adkins was already on light duty and told him to
resume roof bolting that same day. Adkins returned to roof bolting that day as
instructed, but later recounted that immediately returning to roof bolting made his
injury feel worse. At the end of his February 17th shift, Adkins was told that he
was being switched to night shift. Adkins was the only person on that day
transferred to night shift.
After working a few nights, Adkins was informed at the end of his
shift on February 23rd that he was being laid off. According to Adkins’ complaint
and later testimony, Honaker stated at the time that those being laid off had the
least seniority, although Adkins knew of other workers who had less seniority but
were not laid off.
After he was laid off from Lazarus Coal, Adkins immediately found
work with another employer as a roof bolter, albeit at a reduced hourly rate. A few
weeks after being laid off, he received an $18,000.00 bill from the medical center
for treating his February 16th work injury.
-3- After receiving the medical bill, Adkins consulted an attorney and
notified Lazarus Coal’s workers’ compensation carrier of his injury. (Ultimately,
Adkins was not required to pay the medical bill himself.) Adkins filed suit against
Lazarus Coal in late March 2023. He asserted he was unlawfully discharged from
his employment in retaliation for attempting to receive workers’ compensation.
Lazarus Coal filed an answer. It denied being aware of Adkins’
pursuing a workers’ compensation claim at the time of the layoff, especially since
Adkins missed no more than one day of work for the injury. It also asserted that
Adkins was transferred to night shift due to a roof bolter on the night shift quitting
and that Adkins was laid off along with the whole night shift when the shift was
shut down.
After the parties engaged in discovery, Lazarus Coal filed a motion
for summary judgment in its favor. It again asserted it had no knowledge that
Adkins intended to pursue a workers’ compensation claim when he was laid off,
especially since he missed no more than one day of work for the injury.
Adkins filed a response, asserting Lazarus Coal was aware that he was
pursuing workers’ compensation medical benefits based on Adkins’ presenting his
medical release to a Lazarus Coal official and then being told forms would be
filled out to cover the injury. Adkins also argued that Lazarus Coal offered false
reasons for his transfer to night shift and his being laid off. For instance, he
-4- pointed to evidence that another roof bolter with less seniority than him was not
laid off despite management’s representations that those with the least seniority
were being laid off. Adkins also pointed out that a company official’s deposition
testimony that this less experienced roof bolter was retained due to being certified
as a mine emergency technician was contradicted by Lazarus Coal’s admission in
written discovery. The written discovery indicated that this other roof bolter did
not yet have the certification when the layoffs occurred but was simply attending
classes to obtain it.
Lazarus Coal filed a reply, arguing that the mere reporting of a minor
injury and notifying an insurance carrier about the injury could not have made it
aware that Adkins was pursuing a workers’ compensation claim. It asserted that
since Adkins did not even miss more than a day of work for the injury, Lazarus
Coal did not have an obligation to report the injury to the Department of Workers’
Claims and had no reason to suspect that Adkins would pursue a workers’
compensation claim.
The trial court denied the summary judgment motion and the case
proceeded to a jury trial. At trial, Adkins testified that he believed Lazarus Coal
had submitted the necessary paperwork to pursue workers’ compensation benefits
on his behalf until he received the medical bill in the mail. In response to direct
examination about whether he was pursuing a workers’ compensation claim prior
-5- to formally filing a claim with the assistance of counsel, Adkins initially said he
was not. But upon further questioning by his counsel, Adkins explained that he
had not previously filled out forms to obtain workers’ compensation benefits
because he believed that Lazarus Coal personnel were filling out the necessary
forms for him. When asked whether he was attempting to have medical benefits
paid for his injury, he answered in the affirmative. On cross-examination, Adkins
was asked whether he mentioned workers’ compensation or anything about
pursuing a claim to Lazarus Coal personnel, and he testified to pursuing a claim to
get his medical bills paid. Adkins also testified on cross-examination that he did
not contact an attorney until late March 2023, after he received the bill from the
medical center.
Lazarus Coal’s mine manager, Jim Akers (“Akers”) testified that he
was not aware of there being any problem with Adkins’ injury being covered until
Adkins sued Lazarus Coal in late March 2023. However, he admitted that he had
been aware of Adkins’ injury, medical treatment, and his bringing back a work
excuse shortly after these events occurred. When asked whether Lazarus Coal
contacted its workers’ compensation carrier, Akers stated a form was filled out and
indicated a staff member would have filled out the form. Akers also admitted he
was aware that Adkins was seeking workers’ compensation medical benefits.
-6- At the conclusion of Adkins’ case, Lazarus Coal moved for a directed
verdict. The trial court denied the motion, although the judge orally stated it was a
close call.
The jury found in Adkins’ favor on the retaliation claim. It awarded
him $8,000.00 for lost wages. However, the jury declined to award Adkins
anything for emotional distress.
Lazarus Coal filed a motion for judgment notwithstanding the verdict
(“JNOV”). Adkins filed a motion for attorney fees, along with documentation of
his counsel’s time spent working on his case and declarations from several other
local practicing attorneys that the hourly rates charged were reasonable. Adkins
asserted that an attorney fee of slightly over $50,000.00 was reasonable. He
pointed out counsel had expended significant time defending against Lazarus
Coal’s motions and preparing for trial.
The trial court denied the JNOV motion and entered judgment in
accordance with the jury’s verdict. Shortly thereafter, it also entered a
supplemental judgment in which it awarded Adkins attorney fees of $8,000.00
without any further explanation.
Lazarus Coal filed a timely appeal from the judgment on the jury’s
verdict. Adkins filed a timely appeal from the $8,000.00 attorney fee award,
-7- asserting the trial court failed to award a reasonable amount for attorney fees and
failed to make sufficient findings.
Further facts will be set forth as needed in our analysis.
ANALYSIS
First, we consider arguments about the denial of the motions for a
directed verdict and for JNOV.
In ruling on either a motion for a directed verdict or a motion for judgment notwithstanding the verdict, a trial court is under a duty to consider the evidence in the strongest possible light in favor of the party opposing the motion. Furthermore, it is required to give the opposing party the advantage of every fair and reasonable inference which can be drawn from the evidence. And, it is precluded from entering either a directed verdict or judgment n.o.v. unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.
Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985).
Standard of Review for Denial of Directed Verdict and JNOV
The standard of review applicable to a denial of a motion for directed verdict and a judgment notwithstanding the verdict is the same. The appellate court is required to consider the evidence in the strongest light possible in favor of the opposing party. Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985). Either motion is properly granted only if there is a “complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.” Id.
-8- Dollar General Partners v. Upchurch, 214 S.W.3d 910, 915 (Ky. App. 2006).
Next, we note specific requirements plaintiffs must fulfill to survive a defendant’s
motion for directed verdict in workers’ compensation retaliation cases.
Elements of a Workers’ Compensation Retaliation Claim and Requirements to Get Past a Directed Verdict Motion
KRS2 342.197 provides in pertinent part:
(1) No employee shall be harassed, coerced, discharged, or discriminated against in any manner whatsoever for filing and pursuing a lawful claim under this chapter.
...
(3) Any individual injured by any act in violation of the provisions of subsection (1) or (2) of this section shall have a civil cause of action in Circuit Court to enjoin further violations, and to recover the actual damages sustained by him, together with the costs of the law suit, including a reasonable fee for his attorney of record.
Binding precedent applying KRS 342.197(1) establishes a four-part
test for establishing a prima facie case of workers’ compensation retaliation to
survive a motion for directed verdict:
A claim under KRS 342.197(1) is subject to the rule that to avoid a directed verdict in a claim for employment retaliation, the plaintiff must first establish a prima facie case. The plaintiff can meet this initial burden by proof that: (1) he engaged in a protected activity; (2) the defendant knew that the plaintiff had
2 Kentucky Revised Statutes.
-9- done so; (3) adverse employment action was taken; and (4) that there was a causal connection between the protected activity and the adverse employment action. Brooks v. Lexington-Fayette Urban County Housing Authority, 132 S.W.3d 790 (Ky. 2004).
Upchurch, 214 S.W.3d at 915.
Lazarus Coal does not appear to dispute that Adkins showed an
adverse employment action. However, it contends that Adkins failed to offer proof
of engaging in a protected activity or Lazarus Coal’s knowing of such protected
activity prior to taking adverse employment action such as laying Adkins off.
Viewing the Evidence3 in the Light Most Favorable to Adkins, There Was Not a Complete Lack of Proof that He Engaged in the Protected Activity of
3 Lazarus Coal provided specific references to the record, as required by Kentucky Rules of Appellate Procedure (“RAP”) 32(A)(3)-(4) (except for not always providing a specific date in references to the trial recording, see RAP 31(E)(4)), in both its statement of the case and in its argument alleging the trial court erred in denying its motions for a directed verdict and JNOV based on the evidence presented. As Lazarus Coal points out, Adkins’ appellee brief was similarly required to provide specific citations to the record. See RAP 32(B)(3)-(4). Adkins’ appellee brief did provide some references to the written record. But as Lazarus Coal’s reply brief points out, Adkins often cited to his representations in his summary judgment response rather than directly to evidence such as trial testimony (in fact, he cited to no specific portion of any trial recording in his appellee brief). Adkins’ references to the written record often allude to discussions of deposition testimony in his summary judgment response rather than directly to where in the record transcribed deposition testimony is located. His appellee brief also sometimes states that witnesses testified at trial consistent with their deposition testimony, although without any specific references to a particular date and time of the trial recording.
Despite the lack of specific references to evidence in the record in the appellee brief, relevant portions of trial testimony were not difficult to locate given the specific references to the trial recording in the appellant and reply briefs and our own viewing of much of the trial. We urge Adkins’ counsel to provide more specific references to the written record and video- recordings in future briefs—especially to evidence in the record where, as here, there is a directed verdict issue. Nonetheless, our review was not substantially hampered by the lack of specific reference to evidence in the record in Adkins’ appellee brief. Thus, we leniently decline to impose sanctions. See RAP 10(B), RAP 31(H)(1). However, we warn counsel that we are not obligated to be so lenient in the future.
-10- Pursuing Workers’ Compensation Benefits or that Lazarus Coal Knew He Was Pursuing Such Benefits When It Took Adverse Action
Certainly, filing a workers’ compensation claim is protected activity.
KRS 342.197(1). And clearly, Adkins had not formally filed a workers’
compensation claim before he was laid off by Lazarus Coal. However, published
precedent makes clear that an employee does not have to show that he/she formally
filed a workers’ compensation claim to succeed on a retaliation claim. “[A]n
employee may have a cause of action for retaliatory discharge even if he has not
yet filed a formal workers’ compensation claim.” Bishop v. Manpower, Inc. of
Cent. Kentucky, 211 S.W.3d 71, 75 (Ky. App. 2006) (citing Overnite
Transportation Co. v. Gaddis, 793 S.W.2d 129, 130-31 (Ky. App. 1990)).
An employee’s pursuing workers’ compensation benefits (even
without formally filing a workers’ compensation claim) is a protected activity:
it is possible in Kentucky for a worker to draw workers’ compensation benefits without ever filing a claim for compensation. It is absurd to conclude that he was not “pursuing a lawful claim,” even though he notified his employer of his injuries and received the benefits provided by law, simply because a formal claim for compensation was never filed. Although the legislature used the connective word “and” in according protection for those persons “filing and pursuing a lawful claim,” we think there is reasonable justification to regard “and” as “or” in KRS 342.197 in order to accomplish its purpose. This has the effect of placing employees who have filed or are pursuing a lawful claim for workers’ compensation benefits within the protective ambit of the anti-retaliation provision. We hold that under the facts of
-11- this case, including the receipt of voluntary compensation payments, Mr. Gaddis was pursuing a lawful claim within the purview of KRS 342.197. To hold otherwise would allow employers to easily avoid the statute by firing the injured employee before he could file, a relatively easy circumvention of the statute which we do not believe the legislature intended.
Gaddis, 793 S.W.2d at 132.
Lazarus Coal argues there was a lack of evidence that Adkins was
pursuing a workers’ compensation claim. It emphasizes that in response to his
attorney’s question whether he was pursuing a workers’ compensation claim from
the date of injury until the day in March 2023 when he reported the injury to the
compensation carrier after consulting counsel, Adkins said “no” and when asked
“you weren’t pursuing one?”, Adkins again said “no.” However, it admits that
upon further questioning by his counsel, Adkins explained he was not “doing any
paperwork” because he believed Lazarus Coal personnel were filling out forms for
him and when asked whether he was attempting to have medical benefits paid for
his injury, Adkins said “yes, sir.”
While Adkins did initially respond “no” when asked whether he was
pursuing a workers’ compensation claim, the jury could have reasonably inferred
that he simply initially misunderstood his counsel’s question. It could also have
reasonably construed his testimony affirming he was seeking medical benefits for
his injury as evidence that he was pursuing workers’ compensation benefits even
-12- though he had not yet formally filed a workers’ compensation claim when he was
laid off. Moreover, based on our review of the trial, mine manager Akers admitted
he was aware that Adkins was pursuing workers’ compensation medical benefits.
Thus, considering the evidence in the light most favorable to Adkins and making
all reasonable inferences in his favor, we cannot say that there was a complete lack
of evidence of Adkins’ pursuing workers’ compensation benefits or of Lazarus
Coal’s knowledge that he was pursuing such benefits when Adkins was laid off.
This is true even though Lazarus Coal also argues Adkins was not
pursuing a workers’ compensation claim because he immediately returned to work
the day after his injury, quoting Southerland v. Hardaway Management Co., Inc.,
41 F.3d 250, 256 (6th Cir. 1994):
We agree with the district court that Ms. Southerland’s documentary and deposition evidence do not establish the elements of a retaliation claim. There is no indication that any intent to pursue a workers’ compensation claim existed at the time of the plaintiff’s discharge, or that such a course of action was discussed. To the contrary, she was seeking an immediate return to her previous job as manager, claiming that she was able to perform all the required duties of the job. Only after she was denied reinstatement did the plaintiff turn to the Workers’ Compensation Act for relief.
Here, Adkins returned to work the day after his injury, although he
presented a doctor’s release restricting him to light duty, and he continued to work
at his usual position for a few more shifts before he was laid off. In contrast,
-13- Southerland continued to work after her injury until her doctor instructed her not to
return to work a few days later. Also, Southerland did not return to work for a
couple of months during which her employer hired someone else to perform her
duties. According to Southerland, she was terminated on the day she told her
employer she was ready to work and presented a work release with restrictions. Id.
at 252. Moreover, a representative for Southerland’s employer testified she was let
go because she could not perform her job duties and that there was no job for
Southerland consistent with her medical restrictions, especially since the employer
had permanently hired the employee who had taken over Southerland’s job duties
during her convalescence. Id. at 255-56. The Sixth Circuit also emphasized that
Southerland “was injured while performing work that she later claimed was not
required by her position” and found no reason to disbelieve the employer’s
representation that she was discharged due to inability to perform her job, noting
evidence Southerland would have been rehired “if she could have returned to work
with a full release.” Id. at 256.
Not only are the facts here somewhat distinct from Southerland, 41
F.3d 250, but the Sixth Circuit’s interpretation of Kentucky law about workers’
compensation retaliation is not binding on this Court. See Kindred Nursing
Centers Limited Partnership v. Cox, 486 S.W.3d 892, 896 (Ky. App. 2015) (“[A]
federal court’s determination of state law in a diversity case is not binding on a
-14- state court.”).4 Moreover, as Adkins points out, KRS 342.197(1) does not
expressly state an exception for cases in which the plaintiff’s injury does not cause
him/her to miss more than one day of work.
Adkins also asserts that he did everything he was required to do to
seek workers’ compensation medical benefits for his injury prior to his being laid
off. He emphasizes he immediately informed management of his injury, and
immediately sought and obtained treatment. He also stresses he presented his work
release with restrictions to management the next day and was told that Lazarus
Coal personnel would fill out the necessary forms so that his medical bills for the
injury would be paid.
However, Lazarus Coal contends that Adkins merely inquired about
his medical bills being paid by workers’ compensation. It suggests this is
insufficient to show that he was pursuing a workers’ compensation claim or that
his employer knew he was pursuing a workers’ compensation claim. It cites for
our consideration this Court’s opinion in Hall v. Hammond Transportation, Inc.,
No. 2008-CA-000836-MR, 2009 WL 3231392 (Ky. App. Oct. 9, 2009)
4 Also, Southerland was resolved by summary judgment rather than by trial or directed verdict. 41 F.3d at 252-53. And federal courts have long reviewed summary judgment motions under a different standard than that employed by Kentucky state courts. See generally Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480-83 (Ky. 1991).
-15- (unpublished). Lazarus Coal admits this unpublished opinion is not binding
authority. See RAP 40(D)(1); RAP 41(A).
Nonetheless, Lazarus Coal asserts that Hall is factually like the
present case and demands a similar result. Lazarus Coal points out we stated in
Hall that the employer was only aware of the plaintiff’s ankle injury, the plaintiff’s
seeking medical treatment, and the compensation carrier’s denial of coverage. See
id. at *7. Lazarus Coal quotes our statement, that based on the employer’s being
aware of only these three facts: “Absent additional evidence, this is not enough to
demonstrate that Hammond knew Hall was pursuing a claim.” Id. at *7.
Contrary to Lazarus Coal’s argument, Adkins asserts that Hall is
factually distinguishable. For instance, he points out that Hall failed to provide
medical information to the compensation carrier, failed to contest the carrier’s
denial of coverage, and failed to contact his employer for two months. See id. He
also points out that Hall failed to respond to his employer’s phone calls to help fill
out workers’ compensation forms and Hall failed to complete medical information
and waiver forms which the employer mailed to him. Id. at *2-4. Furthermore, we
also noted that although Hall initially informed his employer about his injury, he
did not describe the injury as being work-related at that time. Id. at *6.5
5 Though not binding on us and not cited or discussed by the parties, we find persuasive an unpublished federal district court opinion distinguishing Hall on facts which bear some resemblance to those in the present case. See Vaughan v. Berry Plastics Corp., No. 1:11CV-
-16- In its reply brief, Lazarus Coal contends that the steps Adkins testified
to taking all occurred on the same day he suffered his injury and returned to the
mine office. It also asserts that Adkins simply testified to a conversation with
Honaker, which lasted just a few minutes. Basically, Adkins testified to being told
the company would take care of it (i.e., submitting forms for coverage of medical
expenses for the injury). In response to being asked if he specifically said anything
about pursuing a workers’ compensation claim, Adkins testified to saying, “That is
me pursuing the claim to get my medical bills paid for.”
While we recognize that Adkins may not have clearly testified to
explicitly stating he was pursuing a “workers’ compensation claim” to his
employer, he testified about taking the necessary steps to make sure that he did not
have to pay his medical bills for the work injury and that his employer would be
responsible for paying these costs. Based on this testimony, a jury could
reasonably find that he conveyed an intent to seek workers’ compensation medical
benefits. This is especially true considering Akers’ testimony that he was aware
that Adkins was seeking workers’ compensation medical benefits.
00082-JHM, 2013 WL 230825, at *4-5 (W.D. Ky. Jan. 22, 2013) (unpublished). Like Adkins, Vaughan was terminated prior to his filing a workers’ compensation claim.
The Vaughn court, in discussing why summary judgment in favor of the defendant employer was denied, stated that in contrast to Hall, plaintiff Vaughan had submitted documentation indicating his injury was work-related and required treatment, submitted a work accident report to the plant nurse, and submitted a work excuse from a doctor—all actions which demonstrated he was pursuing a workers’ compensation claim. Id. at *5.
-17- Therefore, considering the evidence in the light most favorable to
Adkins and making all reasonable inferences in his favor, we cannot say there is a
complete lack of evidence that Adkins was pursuing a claim for workers’
compensation medical benefits or that Lazarus Coal was aware of his pursuing
such benefits.
Evidence Was Sufficient to Get Past Directed Verdict Despite Lazarus Coal’s Not Being Obligated to Report Injury Resulting in No More than One Day Off Work Pursuant to KRS 342.038(1)
Lazarus Coal contends that there is no way it could have known that
Adkins intended to file a workers’ compensation claim since he did not even miss
a full day of work for his injury. It cites KRS 342.038(1) which imposes a duty for
the employer to report a work-related injury to the Department of Workers’ Claims
only if the employee misses more than one day of work.
In response, Adkins asserts that an employee could still express an
intent to pursue a workers’ compensation benefit and could still have a valid claim
for retaliation pursuant to KRS 342.197(1) even if his/her employer is not required
to report the injury under KRS 342.038(1). Again, he points to the lack of express
requirement that the injury meet any specific threshold of severity (such as causing
the employee to miss more than one day of work) in KRS 342.197(1).
We agree with Adkins. Binding published precedent calls for broad
interpretation of the protections afforded to workers in KRS 342.197(1) and for
-18- construing efforts to secure workers’ compensation benefits as pursuing a workers’
compensation claim even when the worker has not formally filed a claim at the
time of the adverse action. Gaddis, 793 S.W.2d at 130-32. Thus, especially given
the lack of express severity requirement in KRS 342.197(1), the fact that an
employer is not required to report injuries resulting in no more than a day’s missed
work to the Department of Workers’ Claims under KRS 342.038(1) does not
preclude the employee’s prevailing on a workers’ compensation retaliation claim.
This is true so long as the employee offers proof of the four required elements to
make a prima facie case and get past the employer’s directed verdict motion. See
generally Upchurch, 214 S.W.3d at 915.
Moreover, the one-day rule Lazarus Coal refers to is set forth in KRS
342.038. It does not bar an employee who misses less than a day of work from
receiving workers’ compensation benefits. Rather, the statute simply provides that
the employer is required to keep a record of any injury to an employee in the
course of his/her employment and that the insurance carrier must file with the
Department of Workers’ Claims a report of any injuries causing an employee to
miss more than one day of work. KRS 342.038(1). Notably, however, KRS
342.038(3) requires an employer to “report to its workers’ compensation insurance
carrier or the party responsible for the payment of workers’ compensation benefits
any work-related injury or disease or alleged work-related injury or disease within
-19- three (3) working days of receiving notification of the incident or alleged incident.”
(Emphasis added.) This report puts the carrier on notice of the potential for a
workers’ compensation claim for which benefits may be required to be paid and is
triggered regardless of the number of days, if any, the employee has missed.
Importantly, the Workers’ Compensation Act provides that: “Every
employer subject to this chapter shall be liable for compensation for injury . . .
without regard to fault as a cause of the injury, occupational disease, or
death.” KRS 342.610(1). An injury is “any work-related traumatic event or series
of traumatic events, including cumulative trauma, arising out of and in the course
of employment which is the proximate cause producing a harmful change in the
human organism evidenced by objective medical findings.” KRS
342.0011(1). One type of compensation that an employer is liable to provide is
payment for “the cure and relief from the effects of an injury[,]” including “the
medical, surgical, and hospital treatment, . . . as may reasonably be required at the
time of the injury and thereafter for the length of time set forth in this
section[.]” KRS 342.020(1). There is no threshold requirement that a worker miss
more than a day of work to be eligible for such benefits. Mountain Clay, Inc. v.
Frazier, 988 S.W.2d 503, 505 (Ky. App. 1998) (“[L]iability for medical expenses
requires only that an injury was caused by work and that medical treatment was
necessitated by the injury[.]”).
-20- The requirement as it relates to the employee is that he must provide
notice to his employer of the accident causing the injury “as soon as practicable
after the happening thereof.” KRS 342.185(1). This statute also provides that the
notice may be “made by any person claiming to be entitled to compensation.” By
providing notice of the injury, Adkins in effect let Lazarus Coal know he was
claiming entitlement to compensation. Thus, the jury could properly rely on the
report Adkins made to find that Lazarus Coal was aware that Adkins was claiming
entitlement to workers’ compensation, at least as related to his medical treatment
incurred up to that point. Importantly, a retaliation claim does not require the
claimant to have actually filed a claim. See First Property Management Corp. v.
Zarebidaki, 867 S.W.2d 185, 189 (Ky. 1993) (the retaliation statute is implicated
when an employer is aware that the employee intends to pursue a lawful workers’
compensation claim); Bishop, 211 S.W.3d at 75 (“an employee may have a cause
of action for retaliatory discharge even if he has not yet filed a formal workers’
compensation claim.”).
Sufficient Evidence Was Presented to Get Past Directed Verdict Regarding Causation Requirement
As Adkins points out in his brief, the plaintiff is not required to show
that his/her pursuing a workers’ compensation claim is the sole or primary reason
for the adverse employment action. The plaintiff must only show that such pursuit
-21- is a substantial, motivating factor in the employer’s decision to discharge the
employee to meet the causation requirement. Zarebidaki, 867 S.W.2d at 188-89.
To the extent that Lazarus Coal challenges the sufficiency of proof of
the causation requirement, we conclude that there was not a complete lack of
evidence of causation when considering the evidence in the light most favorable to
Adkins and making all reasonable inferences in his favor. This is especially true
given the conflicting evidence about the reasons asserted by Lazarus Coal for
transferring Adkins to the night shift and then terminating his employment.
Despite Lack of Full Compliance with Appellate Briefing Rule Requiring Preservation Statement with Specific References to the Record at the Beginning of an Appellant Brief Argument, Adkins Identified Where the Issue About a Reasonable Attorney Fee Was Preserved at the End of His Statement of the Case and the Issue Was Clearly Preserved
Lazarus Coal accurately points out that Adkins’ appellant brief does
not fully comply with the requirement for a preservation statement at the
beginning of the argument, accompanied by specific citation(s) to the record,
identifying if or how an issue was raised to the trial court and therefore preserved
for review. See RAP 32(A)(4) (providing appellant brief “shall contain at the
beginning of the argument a statement with reference to the record showing
whether the issue was properly preserved for review and, if so, in what manner.”).
We further note Adkins did not respond to nor attempt to correct the asserted lack
of proper preservation statement in its appellant brief by filing a reply brief.
-22- Nonetheless, despite the lack of full compliance with the requirements
of RAP 32(A)(4), we conclude Adkins substantially set forth where he preserved
the attorney fee issue for review by citing to the page number of the written record
at which the beginning of his motion for attorney fees appears.6 Moreover,
Adkins’ statement of facts also contained a citation to the written record for the
page number at which the trial court’s order and supplemental judgment resolving
the attorney fee issue appeared.7
Despite the lack of ideal compliance with RAP 32(A)(4), Adkins’
counsel substantially complied with the requirement of identifying with reference
to the record if and how the attorney fee issue was preserved. More significantly,
the issue about the amount of the attorney fee sought was clearly raised to the trial
court and thus preserved for review by Adkins’ filing his motion for attorney fees
accompanied by detailed summaries of the time spent by his attorneys and their
staff in working on the case and declarations by other practicing local attorneys
that the proposed rates were reasonable. His motion for attorney fees clearly
6 Better practice, however, would have been to include more specific page references identifying where Adkins specifically set forth the time his attorneys and their staff devoted to the case and the rates his attorneys believed were reasonable to charge, as well as specific page references identifying where other local attorneys declared that these rates were reasonable. 7 However, this citation to the trial court’s resolution of this issue confusingly appeared immediately after a statement about the specific fee sought reflecting the time, efforts, and expertise of counsel and staff rather than after a clear reference to the trial court’s resolution of the attorney fee issue. (See page 8 of “Appellant’s brief” filed in No. 2025-CA-0294-MR.)
-23- requested an attorney fee based on his lodestar calculations of about $51,000.00
based on the hours expended at the proposed rates.8 He also cited authority about
using the lodestar method to calculate reasonable attorney fees and the importance
of awarding reasonable fees to encourage competent counsel to represent workers
in actions to enforce their statutory rights.
Moreover, the complete lack of explanation for the trial court’s
reducing the requested attorney fee from the approximately $51,000.00 claimed
down to $8,000.00 in resolving this issue is perplexing. This amount awarded for
attorney fees mirrors the amount the jury awarded for lost wages. However, we
are unaware of any authority forbidding an attorney fee awarded pursuant to statute
from exceeding the amount recovered by the plaintiff for his/her claim.
Standard of Review for Amount of Attorney Fees Awarded Pursuant to Statute Calling for Awarding Reasonable Attorney Fees to Prevailing Plaintiffs
Recent published precedent from our Supreme Court indicates we
must review the amount of attorney fees awarded by a trial court pursuant to a
Kentucky statute authorizing or mandating reasonable attorney fees for abuse of
discretion:
8 Adkins’ counsel proposed a $300.00 per hour rate for his attorneys’ work. Attached time records indicated one of his attorneys spent almost 141 hours on the case while his other attorney spent almost 29 hours on the case. He also proposed a $75.00 per hour rate for his attorneys’ paralegal’s work and indicated the paralegal spent almost five hours on the case.
-24- Kentucky law makes clear that a trial court’s discretion in setting [attorney] fees is not unlimited. When a statute authorizes or mandates an award of “reasonable” attorney’s fees, granting these awards is a matter of law and reviewed de novo; however, the awarded amount is reviewed to determine “whether the circuit court’s determination constitutes an abuse of discretion.” Hunt v. N. Am. Stainless, 482 S.W.3d 796, 799 (Ky. App. 2016).
The amount must be anchored in the evidence and guided by established factors.
Wheeler v. City of Pioneer Village, 723 S.W.3d 764, 776–77 (Ky. 2025).
Trial Court Abused Its Discretion in Awarding Only $8,000.00 in Attorney Fees with No Specific Findings or Lodestar Analysis
In Wheeler, a plaintiff prevailed on a wage and hour claim. Similarly
to KRS 342.197(3), the relevant statute (KRS 337.385(1)) provided for recovery of
“costs and such reasonable attorney’s fees as may be allowed by the court.” 723
S.W.3d at 777. And somewhat similarly to the present case, the trial court in
Wheeler awarded a relatively modest amount of attorney fees without specifically
explaining why the court decided to substantially reduce the award sought:
Shortly after the March 2023 Order, but before the July 2023 Order, Officer Wheeler’s legal counsel requested $1,356.35 in costs and $91,031.50 in fees. She supported her motion/notice with an hourly breakdown of 299.10 hours performed from three attorneys ($325 to $365/hour), five law clerks ($100 to $165/hour), and two paralegals ($165/hour). She tendered a personal affidavit of her legal experience and examples of similar rates for similar work in the same region.
-25- The trial court’s August 2023 Order determined the request for $91,031.50 in fees was not reasonable in relation to the claim, an award of $5,443.57, and that Officer Wheeler’s legal counsel’s rate of $365.00/hour exceeded “a reasonable hourly rate.” The court awarded $2,500.00 in combined attorney’s fees and costs but did not elaborate on how it arrived at this amount.
Id. at 777.
Our Supreme Court agreed with the prevailing plaintiff’s argument
that the lower court abused its discretion in drastically reducing the amount of the
attorney fee award without any explanation other than a general assertion that the
rates claimed were not reasonable, explaining as follows:
This Court has described a “lodestar” method of calculating reasonable attorney’s fees in employment claims as consisting of the product of counsel’s reasonable hours, multiplied by a reasonable hourly rate, thus providing a “lodestar” figure which may then be adjusted to account for various special factors in the litigation. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 826 (Ky. 1992) (citing the analysis in Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)). Although the court recognized Wheeler’s entitlement to an award of “reasonable” fees under the governing wage and hour statute, it reduced the fee petitioned to a flat $2,500.00 without explanation.
Here, the trial court’s drastic reduction of a detailed petition without findings fails to satisfy those requirements. On remand, the trial court should closely evaluate the record of the litigation, including the hours devoted to discovery, the procedural hurdles presented, continuances filed by the defense, and the preparation necessary to present a wage-and-hour case at trial. Such cases are often intensive, involving review of records,
-26- examination of statutory and local ordinances, and preparation of multiple witnesses. To disregard the scope of that work by arbitrarily capping the fee risks undermining the statutory scheme itself.
It bears emphasis that the purpose of fee-shifting provisions in wage and hour laws is not merely to compensate prevailing counsel, but to ensure meaningful enforcement of the law. If awards are untethered from the actual work required, employees—who by statute are guaranteed their earned wages—may be unable to secure representation. Likewise, employers determined to have acted unlawfully might be incentivized to prolong litigation, knowing that counsel for employees may never be adequately compensated relative to the work performed.
This Court has since adopted the “lodestar” method that attorney’s fees awarded should consist of the product of counsel’s reasonable hours multiplied by a reasonable hourly rate, which may then be subject to adjustment for special circumstances. Meyers, 840 S.W.2d at 826.
KRS 337.385 mandates “reasonable attorney’s fees” to prevailing employees reflecting legislative judgment that wage protections must be meaningfully enforceable. That enforcement depends on ensuring employees can secure competent representation. Wheeler’s counsel submitted a detailed affidavit documenting nearly 300 hours of work at prevailing market rates. The court reduced an affidavit of attorney’s fees with a “contemporaneous record” of hourly breakdown and dates from $91,031.50 to $2,500.00 combined with costs without explanation. This arbitrary and unfounded reduction was an abuse of discretion.
The Court of Appeals correctly determined that the trial court’s reduction was unsupported and remanded for reconsideration. We affirm that determination. On
-27- remand, it is recommended that the trial court assess the petition in light of the governing factors, articulate its reasoning with specificity, and award a fee that reflects the actual work performed and the legislative purpose of ensuring employees have access to effective legal representation in vindicating their statutory rights.
Wheeler, 723 S.W.3d at 777-78.
Although there appears to be no Kentucky published precedent
squarely addressing how a reasonable attorney fee is to be determined in a
workers’ compensation retaliation case,9 a state law claim for workers’
compensation retaliation is analogous to a state law wage and hour claim. Like
wage and hour laws which contain provisions for prevailing plaintiffs to obtain
reasonable attorney fees to ensure that workers can obtain legal representation to
enforce their statutory rights, see id. at 777-78, KRS 342.197(3) similarly states
that prevailing workers’ compensation retaliation plaintiffs may recover reasonable
attorney fees. Obviously, KRS 342.197(3) is also aimed at making sure workers
can obtain legal representation to enforce their right not to suffer adverse action for
pursuing workers’ compensation claims. Moreover, like wage and hour claims,
workers’ compensation retaliation claims are employment claims, so it makes
9 But see Colorama, Inc. v. Johnson, 295 S.W.3d 148, 154 (Ky. App. 2009) (affirming award of attorney fees since the motion for directed verdict in workers’ compensation retaliation case was properly denied and KRS 342.197(3) authorized such an award of attorney fees, but also stating review of attorney fee issue was precluded pursuant to prior, then-applicable authority holding that appellate courts lacked jurisdiction to review attorney fee awards where the attorney was not named as a party to the appeal). Colorama, 295 S.W.3d 148, did not address whether the amount of the attorney fee awarded was reasonable, however.
-28- sense that “lodestar analysis” is called for in determining the reasonableness of the
fee awarded. See Wheeler, 723 S.W.3d at 777 (citing Meyers, 840 S.W.2d at 826).
Pursuant to Wheeler, 723 S.W.3d at 777, we conclude that the trial
court abused its discretion in awarding only $8,000.00 in attorney fees without any
findings discussing why it rejected the over $50,000.00 lodestar figure set forth by
Adkins and without any findings setting forth what the trial court believed to be
reasonable rates or reasonable hours expended.
We vacate the $8,000.00 attorney fee award and remand for re-
consideration of a reasonable attorney fee with specific findings about a lodestar
figure derived from multiplying reasonable hours by reasonable rates and then
adjusting for any special circumstances. See id. at 777. In other words, on remand
the trial court must assess a reasonable attorney fee “in light of the governing
factors, articulate its reasoning with specificity, and award a fee that reflects the
actual work performed and the legislative purpose of ensuring employees have
access to effective legal representation in vindicating their statutory rights.” See
id. at 778.
Further arguments in the parties’ briefs, which are not discussed
herein, have been determined to lack merit or relevancy to our resolving these
appeals.
-29- CONCLUSION
For the foregoing reasons, we AFFIRM the judgment on the jury
verdict, but we VACATE the $8,000.00 attorney fee award and REMAND for re-
determination of a reasonable attorney fee with proper lodestar analysis and
consistent with the guidelines set forth in Wheeler, 723 S.W.3d at 777-78.
ALL CONCUR.
BRIEFS FOR LAZARUS COAL BRIEFS FOR ABRAM SCOTT LLC: ADKINS:
Lawrence R. Webster Nathan D. Brown Pikeville, Kentucky Williamson, West Virginia
-30-