NOT TO BE PUBLISHED

OPINION

MAZE, Judge.

Harry S. Maynard petitions for review of a February 1, 2013 opinion by the Workers' Compensation Board (Board) which affirmed an August 24, 2012 order by the Administrative Law Judge (ALJ) dismissing his workers' compensation claim against C&R Holding of Eastern Kentucky (C&R Holding). He argues that the ALJ erred in finding that his claim was barred pursuant to the election of remedies provision of Kentucky Revised Statutes (KRS) 342.610(4). We agree with the Board that, by electing to bring a civil action under that section, Maynard waived his right to recover workers' compensation benefits. Hence, we affirm.

In October of 2008, Maynard was employed by C&R Holding of Eastern Kentucky. On October 15, in the course of that employment, he was performing refueling and maintenance on a bulldozer. Maynard alleges that while he was engaged in that task, his supervisor, Steven R. Adkins, began subjecting him to verbal abuse. The confrontation escalated when Adkins climbed onto the bulldozer and struck Maynard, knocking him off the bulldozer onto the ground below. As a result of this fall, Maynard alleges that he suffered severe injuries to his back, and that the fall precipitated a stroke which has left him partially paralyzed.

On October 15, 2009, Maynard filed a civil action in the Pike Circuit Court against Adkins, C&R Holding and other defendants, seeking damages for his injuries arising from the altercation.1 Thereafter, on May 31, 2012, Maynard filed this claim for workers' compensation benefits. In response, C&R Holding moved to dismiss based upon the doctrine of election of remedies. The ALJ agreed, concluding that KRS 342.610(4) permitted Maynard to bring either a workers' compensation claim or a civil action, but not both. On further appeal, the Board affirmed the ALJ's order dismissing the claim. Maynard now petitions for relief from this Court.

As a general rule, the Workers' Compensation Act provides the exclusive remedy for recovery of damages arising from work-related injuries against an employer who has secured coverage. KRS 342.690(1). However, KRS 342.610(4) creates an exemption from the exclusive remedy provision of KRS 342.690(1) if the employee is injured through the deliberate intention of the employer:

KRS 342.610(4). In other words, when the employee is injured through the deliberate intention of his employer, this section of the statute gives the injured employee the right to elect which forum in which he wishes to proceed. However, it does not afford a claimant an opportunity to proceed in both forums. If the employee seeks to recover through a civil action, then he is barred from any recovery under the Act. Zurich American Insurance Co. v. Brierly, 936 S.W.2d 561, 562 (Ky. 1997). See also American General Life & Accident Insurance Co. v. Hall, 74 S.W.3d 688 (Ky. 2002).

The Board concluded that Maynard had waived any right to recover workers' compensation benefits by filing his civil action. In response, Maynard points to the provisions of KRS 342.700(1), which allow an injured employee to pursue both civil action and a workers' compensation claim when the person other than the employer is liable for damages. In such cases, the employee must give notice of the civil action to the employer, and any damages recovered are subject to apportionment or offset to prevent a double recovery. Based on this statute, Maynard contends that he is entitled to pursue a civil action against Adkins as well as his claim for workers' compensation benefits against C&R Holding.

Maynard cites to several cases which interpret KRS 342.700 to support his argument that he is not bound by his election to pursue a civil claim. Haines v. BellSouth Telecommunications, Inc., 133 S.W.3d 497 (Ky. App. 2004), Brewer v. Hilliard, 15 S.W.3d 1 (Ky. App. 1999), Russell v. Able, 931 S.W.2d 460 (Ky. App. 1996), and Kearns v. Brown, 627 S.W.2d 589 (Ky. App. 1982). However, each of these cases focuses on the liability of a third party for a tort claim arising from a work-related injury. While such a third party may include a fellow employee, the provisions of KRS 342.700(1) only apply to claims against third parties other than the employer.

The current case involves whether Maynard can proceed simultaneously against the employer in a civil action and workers' compensation claim. In his civil complaint, Maynard is seeking damages arising from the October 15, 2008 altercation between himself and Adkins. Maynard seeks to recover from several parties, including both Adkins and his employer, C&R Holding. The Board noted that C&R Holding remains a party to that action, and Maynard continues to assert that Adkins was acting on behalf of C&R Holding when he inflicted the injury.

We agree with the Board that Maynard is not entitled to pursue a separate workers' compensation claim simply because he may not prevail in his civil action. Rather, KRS 342.690(4) and Brierly expressly preclude Maynard from seeking relief through both a civil action and a workers' compensation claim. Therefore, the ALJ properly dismissed his claim.

Accordingly, the February 1, 2013 opinion by the Workers' Compensation Board is affirmed.

ALL CONCUR.