ALICE M. CHANEY v. COMMONWEALTH OF KENTUCKY, KENTUCKY STATE POLICE; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
APRIL 26, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000561-WC
ALICE M. CHANEY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-68397
COMMONWEALTH OF KENTUCKY, KENTUCKY
STATE POLICE; HON. DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, MILLER AND SCHRODER, JUDGES.
JOHNSON, JUDGE: Alice M. Chaney has petitioned for a review of an
opinion rendered by the Workers’ Compensation Board on February
14, 2001, which affirmed the opinion and award of the
Administrative Law Judge (ALJ), which denied Chaney’s claim for
permanent total disability benefits.
Having concluded that the
the claimant has failed to establish that the evidence in her
favor was so compelling as to require a decision in her favor as
a matter of law, we affirm.
Chaney, who was born on July 3, 1959, was employed by
the Kentucky State Police for approximately 18 years as a state
trooper, public relations officer, and detective.
For the final
12 years of her employment, Chaney was primarily assigned to
homicide cases and other death investigations.
Many of her
investigations involved gruesome and violent crimes.
In 1993, Chaney began experiencing psychological
problems related to the stress of her job.
She often experienced
bouts of crying, had trouble sleeping, and lost her appetite.
Chaney began receiving medical treatment for stress and anxiety
in 1995, and over time her psychological condition has worsened.
Chaney has alleged that sexual harassment by her supervisors and
the stress of investigating homicide cases have caused her mental
condition.
On August 30, 1998, Chaney fell from a sidewalk at the
Kentucky State Police post where she was employed, injuring her
right ankle.
She sought medical treatment and was diagnosed with
a severe sprain.
After missing several weeks of work due to her
injury, Chaney returned to work with minimal physical
restrictions.
After returning to work, Chaney’s psychological
condition increasingly declined.
On June 2, 1999, Chaney left
her position with the state police due to overwhelming
depression, stress, and anxiety.
However, according to Chaney’s
own testimony, her psychological condition and her ankle injury
were unrelated.
On January 4, 2000, Chaney filed an application for
resolution of injury claim seeking permanent total disability
benefits.
She claimed that both her ankle condition and her
psychological condition contributed to her disability.
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On
October 3, 2000, the ALJ dismissed the psychological component of
Chaney’s disability claim and assigned her ankle injury a
permanent partial disability rating of 1.5%, which was based on a
2% impairment rating and a factor of .75.1
In addition to
reasonable medical costs, the ALJ awarded Chaney permanent
partial disability benefits of $5.24 per week for a period of 425
weeks.
On February 14, 2001, the Workers’ Compensation Board
affirmed the decision of the ALJ.
This petition for review
followed.
Chaney contends that the ALJ’s findings of fact were
clearly erroneous and that the evidence compels a decision in her
favor.
Chaney asserts that she can no longer pursue her career
in law enforcement because of her weakened ankle and her
depressed mental condition.
While she acknowledges that her
physical impairment may be mild, Chaney argues that it
nonetheless disqualifies her from pursuing her line of work,
which she claims is highly rigorous.
Our review of the disposition of Chaney’s claim by the
ALJ and the Workers’ Compensation Board is very limited.
“The
function of further review of the WCB in the Court of Appeals is
to correct the Board only where the . . . Court perceives the
Board has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so
flagrant as to cause gross injustice.”2
The ALJ, as the finder
of fact, has the sole authority to determine the quality,
1
Kentucky Revised Statutes (KRS) 342.730(1)(6).
2
Western Baptist v. Kelly, Ky., 827 S.W.2d 685, 687-88
(1992).
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character, and substance of the evidence.3
For a party with the
burden of proof who was unsuccessful before the ALJ to prevail on
review, the party must demonstrate that the evidence was “so
overwhelming, upon consideration of the entire record, as to have
compelled a finding in [her] favor.”4
Compelling evidence is
evidence “so overwhelming that no reasonable person could reach
the conclusion” which is being challenged.5
In regard to Chaney’s mental disability, the Kentucky
General Assembly in 1994 amended KRS 342.0011(1) to provide that
a psychological injury is not compensable unless “it is a direct
result of a physical injury.”
This statute was applied in
Staples, Inc. v. Konvelski,6 where the Board, this Court and the
Supreme Court of Kentucky affirmed an ALJ’s findings that the
claimant was totally disabled by the combination of an arm injury
and resulting psychological conditions.
Unlike the case sub
judice, in Staples, the ALJ found that the claimant sustained an
injury to her right arm and that two of her treating physicians
believed “she had developed a psychological condition as a result
of the injury to her right arm, and [the ALJ] concluded that the
combination of the two problems resulted in a total occupational
disability.”
Based on the testimony of the claimant’s
psychiatrist, “the ALJ concluded that the psychological condition
3
Square D Co. v. Tipton, Ky., 862 S.W.2d 308, 309 (1993).
4
Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735, 736
(1984).
5
REO Mechanical v. Barnes, Ky.App., 691 S.W.2d 224, 226
(1985).
6
Ky., 56 S.W.3d 412, 415 (2001).
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was a direct result of the physical injury and, therefore, was
compensable.”7
In Lexington-Fayette Urban County Government v. West,8
the claimant was successful in appealing an adverse decision by
the ALJ and obtaining a remand from the Board for further
consideration by the ALJ of whether her post-traumatic stress
disorder was compensable.
In affirming this Court, which had
affirmed the Board, the Supreme Court concluded “that if the
first in a series of traumatic events involves physical trauma,
and that event is a direct and proximate cause of a harmful
change in the human organism, the harmful change may be
compensable.”9
West, who was also a former police officer,
suffered from post-traumatic stress disorder after she had been
“physically assaulted by a knife-wielding suspect that she was
attempting to apprehend.”10
It was undisputed that her
psychological disorder “became increasingly symptomatic following
additional work-related incidents involving psychological
trauma[.]”11
The Supreme Court stated:
An event that involves physical trauma may be
viewed as a “physical injury” without regard
to whether the harmful change that directly
and proximately results in physical,
psychological, psychiatric, or stressrelated. But in instances where the harmful
change is psychological, psychiatric, or
stress-related, it must directly result from
7
Id. at 415.
8
Ky., 52 S.W.3d 564 (2001).
9
Id. at 567.
10
Id. at 564-65.
11
Id. at 565.
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the physically traumatic event. We view an
incident that is described as a “full-fledged
fight” in which a police officer and suspect
are scuffling and rolling on the ground as an
event that involves physical trauma, in other
words, as a physically traumatic event.
A question then arises concerning
whether each traumatic event in a series of
such events must involve physical rather than
mental trauma in order to authorize
compensation for a resulting psychological,
psychiatric, or stress-related change. KRS
342.0011(1) contains no explicit requirement
to that effect and indicates only that the
harmful change must be “the direct result of
a physical injury.” We conclude, therefore,
that if the first in a series of traumatic
events involves physical trauma, and that
event is a direct and proximate cause of a
harmful change in the human organism, the
harmful change may be compensable.12
The case sub judice is distinguishable from West since Chaney’s
ankle injury is the only “event that involves physical trauma”
and her harmful change which is psychological, psychiatric, or
stress-related did not directly result from the physically
traumatic event involving her ankle.
During her hearing before the ALJ, Chaney freely
admitted that her psychiatric condition was independent of her
work-related ankle injury.
Furthermore, while the medical
evidence from Chaney’s treating physician, Dr. James B. Noble,
indicated that her long-term depression and anxiety with
underlying stress was a direct result of her employment, he did
not connect her psychiatric problems to her ankle injury.
Chaney’s psychiatrist, Dr. Benjamin B. Storey, diagnosed her as
suffering from depression with mixed anxiety, but he also did not
link her psychiatric condition to her ankle injury.
12
Id. at 566-67.
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Additionally, Reba Moore, a psychologist who performed an
independent psychological evaluation of Chaney, diagnosed her
with post-traumatic stress disorder, severe, and depressive
disorder, but she did not connect these psychological problems to
Chaney’s ankle injury.
Thus, the evidence of record does not
compel a finding that Chaney’s psychological condition is a
direct result of the physical injury to her ankle.
Accordingly,
under Kentucky law as amended in 1994, the ALJ had no alternative
but to dismiss Chaney’s claim for psychological disability, and
the Board and this Court have no authority to set aside that
decision.
In regard to Chaney’s claim relating to her ankle
injury, we similarly find that the ALJ’s findings were supported
by substantial evidence.
Following her ankle injury, Chaney
returned to work with few limitations.
Chaney ably performed her
duties until she was overwhelmed by depression and anxiety in
June of 1999.
Although Dr. Calvin Johnson, an orthopaedist who
performed an independent medical evaluation of Chaney, placed
certain restrictions on Chaney’s physical activities due to
residual pain in her ankle, nothing in his report suggests that
she could not perform her duties as an officer for the Kentucky
State Police.
Therefore, we must conclude that the ALJ’s finding
that Chaney was entitled to a 2% impairment rating for her
permanent ankle condition was supported by substantial evidence.
The record as a whole overwhelmingly demonstrates that
Chaney is totally disabled due to her psychological condition not
her ankle injury.
However, under KRS 342.0011(1) her
psychological disability is non-compensable because it did not
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result from a physical injury.
While the state of the law since
the amendments in 1994 places injured persons such as Chaney in
the unfortunate position of not being compensated for some workrelated disabilities, it is within the authority of the
Legislature to set such public policy and the executive and
judicial branches of government are limited by those legislative
enactments.
For the foregoing reasons, the opinion of the Workers’
Compensation Board affirming the opinion and award of the ALJ is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, KENTUCKY
STATE POLICE:
Otis Doan, Jr.
Harlan, Kentucky
K. Lance Lucas
Florence, Kentucky
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