LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT V. GINGER K. WEST; ROGER D. RIGGS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: AUGUST 23,200l
TO BE PUBLISHED
LEXINGTON-FAYETTE
URBAN COUNTY GOVERNMENT
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
NO. 1999-CA-002462-WC
WORKERS’ COMPENSATION BOARD NO. 98-00677
GINGER K. WEST; ROGER D. RIGGS,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
It is undisputed that the former police officer who filed this workers’
compensation claim suffers from post-traumatic stress disorder and that the condition
originated with a 1989 incident in which she was physically assaulted by a knifewielding suspect that she was attempting to apprehend. Furthermore, it is undisputed
that the condition became increasingly symptomatic following additional work-related
incidents involving psychological trauma and that the claimant asserted a total disability
when applying for benefits in 1998. Nonetheless, an Administrative Law Judge (ALJ)
dismissed the claim, stating two reasons. First, if the condition were viewed as resulting
from a single incident and producing periodic flare-ups of symptoms, the injury occurred
in 1989 and, therefore, the claim was barred by limitations. Second, if the condition
were viewed as a cumulative trauma injury that began in 1989, was aggravated by
subsequent traumatic events, and became disabling in 1998, it involved no physical
injury and, therefore, was not compensable under the applicable version of
KRS 342.001 l(1).
Affirming a decision by a majority of the Workers’ Compensation Board (Board),
the Court of Appeals determined that uncontradicted medical evidence attributed the
claimant’s disorder to the effects of a series of work-related, traumatic incidents that
began with the 1989 assault.’ The Court concluded, therefore, that the claim must be
remanded for further consideration under Havcraft v. Corhart Refractories Co., Ky., 544
S.W.2d 222 (1976) and Randall Co. v. Pendland, Ky. App., 770 S.W.2d 687 (1989).
Construing the 1996 version of KRS 342.001 l(l), the Court determined that a series of
traumatic events that causes a psychological, psychiatric, or stress-related change in
the human organism may originate from a single physical injury. Finally, the Court
determined that although the claimants physical harm from the 1989 assault consisted
of scratches, abrasions, and soreness, the incident, itself, was of significant proportion
and was severe enough to comply with the term “physical injury” as it is used in the
1996 version of KRS 342.001 l(1).
lAlthough Board-member Lovan agreed that a remand was required, he was
not persuaded that the evidence compelled the ALJ to determine that the claimant’s
condition was caused by cumulative trauma rather than the 1989 event or to determine
that the 1989 event constituted a physical injury.
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The employer points to certain portions of the ALJ’s opinion which indicate that
the claim involves disability that is attributable to the single incident that occurred in
1989. It complains that the Board and the Court of Appeals erred by remanding the
case simply because other portions of the opinion indicate that the claim would also fail
if the claimant’s post-traumatic stress disorder were due to cumulative trauma.
When read in isolation, the portions of the ALJ’s opinion to which the employer
refers do support its position. Nonetheless, although the ALJ appears to have
concluded that the claimants condition resulted entirely from the effects of the 1989
incident, the passages that follow indicate that the claim was also considered as though
it were a gradual injury. The language that is used in those passages is such that the
ALJ’s final conclusion concerning the manner in which the harmful change occurred is
unclear. Furthermore, the ALJ determined that if the claim were governed by Randall
Co. v. Pendland, supra, it must be decided under the law that was effective in 1998.
Yet, pages 5 and 6 of the opinion clearly indicate that the ALJ relied upon the April 4,
1994, definition of “injury” rather than the December 12, 1996, definition when
concluding that the post-traumatic stress disorder developed after the 1989 incident
and that it was not a result of a “physical injury” but of the claimant’s emotional reaction
to the incident.
In summarizing the evidence, the ALJ indicated that Dr. Weitzel assigned a 20%
impairment and attributed the claimant’s entire impairment and disability to the 1989
incident. Dr. Ruth assigned a 15% impairment, attributed the condition to the 1989
incident, but indicated that the subsequent events may well have exaggerated or
aggravated the condition. Dr. Bunch assigned a 30% impairment, and he indicated that
the condition was severe and chronic, that it arose following the 1989 incident, and that
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the cumulative effect of the subsequent incidents aggravated or exacerbated the
developing condition.
It is noteworthy that the psychiatrist to whom the claimant was sent by her
employer shortly after the 1989 incident released her to return to work with a clean bill
of health and that she did return to work. She experienced symptoms following each of
the subsequent work-related, traumatic incidents, and over the years she sought
transfers into positions where it was less likely that she would have to deal with violent
or mentally ill individuals. But, it was not until 1997 that symptoms of her condition
became persistent enough to cause her to seek medical attention and to be referred to
Dr. Granacher, a psychiatrist. It was he who first diagnosed post-traumatic stress
disorder. and attributed it to her work. In October, 1997, she was placed on light duty
due to severe hand tremors and anxiety, and in March, 1998, she was placed on
disability retirement. Having considered the evidence as a whole, we are persuaded
that the Court of Appeals did not misapply the law when it concluded that the Board’s
decision was within the scope of its review and did not take a patently unreasonable or
flagrantly implausible view of the evidence when concluding that it compelled treating
the matter as a claim for a cumulative trauma injury.
Western Baptist Hospital v. Kelly,
Ky., 827 S.W.2d 685 (1992).
In 1989, KRS 342.001 l(1) defined a compensable injury as being “any workrelated harmful change in the human organism, arising out of and in the course of
employment. . . .‘I Effective April 4, 1994, the legislature added the requirement that a
compensable psychological, psychiatric, or stress-related change in the human
organism be “a direct result of a physical injury.” That requirement was retained when
the provision was again amended effective December 12, 1996, to define an “injury” as
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being:
[A]ny 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. . . . “Injury” . . . shall not include a
psychological, psychiatric, or stress-related change in the human organism,
unless it is a direct result of a physical injury.
It is apparent from the foregoing that since December 12, 1996, the term “injury”
refers to the traumatic event or series of events that causes a harmful change rather than
to the harmful change, itself. We conclude, therefore, that for the purposes of the 1996
version of KRS 342.001 l(l), a “physical injury” is an event that involves physical trauma
and proximately causes a harmful change in the human organism that is evidenced by
objective medical findings. 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 is physical, psychological, psychiatric, or stress-related. But in instances where the
harmful change is psychological, psychiatric, or stress-related, it must directly result from
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 342.001 l(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
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compensable.
To summarize, we are persuaded that the Board was within its scope of review
when it determined that the evidence compelled the ALJ to treat this claim as being for the
effects of cumulative trauma. For that reason, the claim must be remanded for further
consideration and findings of fact under our decision in Special Fund v. Clark, KY., 998
S.W.2d 487 (1999). At that time, the ALJ must apply the 1996 definition of injury in order
to determine whether the claimant sustained a physical injury in 1989 and, if so, whether
the physical injury was a direct and proximate cause of the harmful change that she
alleged.
The decision of the Court of Appeals is affirmed.
All concur.
COUNSEL FOR APPELLANT:
Hon. Robert L. Swisher
GERALDS, JONES, SHERROW,
SCHRADER, & Rick, P.S.C.
259 Short Street
Lexington, KY 40507
COUNSEL FOR APPELLEE WEST:
Hon. David B. Allen
2333 Alexandria Drive
Lexington, KY 40504
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