LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT v. GINGER K. WEST; HON. ROGER D. RIGGS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: September 29, 2000; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002462-WC
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-00677
v.
GINGER K. WEST; HON. ROGER D. RIGGS,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, and SCHRODER, Judges.
COMBS, JUDGE:
The Lexington-Fayette Urban County Government
(“LFUCG”) asks us to review an opinion of the Workers’
Compensation Board (Board) rendered September 10, 1999.
Revised Statutes (KRS) 342.290.
Kentucky
We affirm.
Ginger West began working for the LFUCG Police
Department in 1986.
officer.
Between 1986 and 1989, she was a patrol
She was then transferred to the Narcotics Division and
later to the detective bureau.
Thereafter she was transferred to
the Commercial Burglary Unit where she worked for two or three
years until October of 1997.
Near the end of her career, West
began to suffer with an intolerable level of anxiety and to
experience severe hand tremors.
light duty.
As a result, she was assigned to
West applied for disability retirement and left the
police force on March 11, 1998.
On September 21, 1989, West and her partner were
working as patrol officers.
After receiving a call indicating
that a man was screaming threats of violence in the middle of a
residential street, West proceeded to the scene.
As she was the
first officer to arrive, she began to pursue the suspect.
West approached the man, he turned and attacked her.
When
partner arrived and also became involved in the melee.
West’s
Once the
officers had the suspect adequately under control, West reached
for her handcuffs.
Capitalizing upon this opportunity to marshal
his strength, the suspect was able to cast off both officers.
produced a knife and stabbed West’s partner.
weapon.
He
West drew her
As the suspect charged her, West fired three shots,
killing the man.
Back at the station, West was noted to have suffered
abrasions, scrapes, and scratches as a result of the assault.
She was relieved of her regular duties and was assigned to the
department’s chaplain for two days following the shooting.
Dr.
Mike Neitzel, a psychiatrist associated with the University of
Kentucky Medical Center, examined West and released her with a
clean bill of health.
Three days following the assault, West was dispatched
to a location on I-75, where she found a person gesturing wildly
and walking in the roadway.
The suspect was not responsive to
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West’s questions and eventually became confrontational.
West
testified that she became emotionally unable to deal with the
situation and required back-up to handle the matter.
After this
incident, West was nervous and anxious for several days and
experienced difficulty in sleeping.
This condition seemed to
resolve itself, however, and West had no additional problems for
several years.
Sometime after her transfer to the detective bureau,
West was dispatched to a scene involving domestic violence.
She
was confronted by a large woman involved in a verbal and physical
altercation with her husband.
The woman became progressively
more violent and began to approach West in a menacing manner.
West apparently panicked at the scene and again began to have
trouble sleeping.
In October 1994, fellow officer Sergeant Phil Vogel
accidentally discharged his gun, killing a young African-American
suspect.
This incident sparked several days of riots in
Lexington and drew national media attention.
Local media
highlighted parallels between the 1994 incident and West’s 1989
shooting of her assailant.
The police department remained in a
heightened state of readiness during this time, and all officers
were required to work in full riot gear.
West worked long hours
during this time and testified that her anxiety level
intensified.
In 1995, fellow officer Ed Lingenfelter was shot while
placing a suspect in his cruiser.
Soon after this incident,
Officer Tim Russell was also shot in the line of duty.
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West
stated that she experienced flashbacks and increased anxiety at
this point.
She became irritable and withdrawn.
had developed severe tremors.
By 1996, West
She began to experience
flashbacks, nightmares, and panic attacks; she re-lived the 1989
assault and shooting on a regular basis.
intense chest pain.
She began to experience
In 1997, Dr. Robert Granacher diagnosed West
with post-traumatic stress disorder.
On April 13, 1998, West filed a claim for benefits
under the Workers’ Compensation Act.
KRS Chapter 342.
The
administrative law judge (ALJ) dismissed her claim in an opinion
and order rendered April 21, 1999.
The ALJ determined that
West’s psychological condition was the result of the incident of
September 1989 (the date of the assault and shooting) and that it
was, therefore, barred by the statute of limitations and by
Coslow v. General Electric Co., Ky., 877 S.W.2d 611 (1994).
The
ALJ also determined that if West’s claim were instead analyzed as
a cumulative trauma injury pursuant to Randall v. Pendland, Ky.,
770 S.W.2d 687 (1989), the law in effect when she retired in 1998
would also bar recovery since the definition of “injury” (KRS
342.0011(1), effective December 12, 1996) would not encompass her
condition.
remanded.
West appealed to the Board, which reversed and
This appeal followed.
The Board concluded that West’s condition is
attributable to a series of traumatic events and not to a single,
specific traumatic episode or event.
Consequently, it
determined, the claim is not governed by Coslow, supra, nor is it
barred by limitations.
With respect to this issue, it stated:
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Our review of the evidence indicates that all three
examining psychiatrists stated without contradiction
that West’s condition developed over time and as a
result of a series of work-related, psychiatric,
traumatic events of which the 1989 assault was simply
the beginning. The expert medical testimony holds that
West’s post[-]traumatic stress disorder is the result
not of a single traumatic event or accident but of many
psychiatric traumas between 1989 and 1997. Therefore,
we conclude that the case sub judice must be controlled
by the principles established in Randall v. Pendland,
supra, and Haycraft v. Corhart Refractories Co., Ky.,
544 S.W.2d 222 (1976). . . .
We agree with the Board’s assessment of the evidence
and with its legal conclusion.
However, we must consider whether
West’s post-traumatic stress disorder qualifies as an “injury”
under the 1996 version of KRS 342.011(1) so as to remain
compensable under that modification of the statute.
As amended
in 1996, KRS 342.0011(1) provides, in relevant part, as follows:
(1) “Injury” means 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. “Injury” does not include the effects of the
natural aging process, and does not include any
communicable disease unless the risk of contracting the
disease is increased by the nature of the employment.
“Injury” when used generally, unless the context
indicates otherwise, shall include an occupational
disease and damage to a prosthetic appliance, but shall
not include a psychological, psychiatric, or stressrelated change in the human organism, unless it is a
direct result of a physical injury.
(Emphasis added).
In his opinion and order, the ALJ addressed the
emphasized phrase above as follows:
According to this definition . . . a specific exclusion
was created whereby 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. The post-traumatic stress disorder
which resulted from the incident of September 21, 1989
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was not a result of a physical injury but was a result
of the emotional reaction which the police officer had
to the circumstances of that date.
In its review, the Board rejected this interpretation
of the evidence and controlling law as applied to the unique
facts of this case.
It concluded as follows:
In order to qualify as an “injury” under the above
definition . . . West must demonstrate that her
condition is some how connected to a “physical injury.”
Without question, a work-related assault qualifies as a
traumatic event under Kentucky law. Blue Diamond Coal
Co. V. Creech, Ky., 411 S.W.2d 331 (1967); Williams v.
Nowak, Ky., 406 S.W.2d 408 (1966); Hansen v. Frankfort
Chair Co., 249 Ky. 194, 60 S.W.2d 349 (1933). Because
the assault on West occurred as one single “fullfledged fight” within a matter of minutes on September
21, 1989, and there was no sufficient “cooling off
period” between West’s scuffle with her assailant and
his attack with the knife, we believe the total episode
qualifies as a single traumatic event.
Certainly, West’s post[-]traumatic stress disorder
syndrome qualifies as a harmful change to the human
organism. This harmful change is evidenced by the
unanimous objective medical findings of all three
physicians whose expert opinions are contained in the
record. Since West’s harmful psychiatric,
psychological, and stress-related change is traceable
to the 1989 assault and subsequent work-related
traumatic events, we believe the totality of the
evidence also compels a finding of proximate causation.
See Larson’s, Workers’ Compensation, §6.60.
* * * *
[W]e acknowledge that since 1994 that category of workrelated injury claims known as “mental-mental” by
statute have been excluded by our Legislature as
compensable unless associated with a “physical injury.”
[W]e interpret “physical injury” to mean “physical
incident” based upon common usage of that phrase.
* * * *
Hence, for the purposes of KRS 342.0011(1), if a workrelated traumatic event involves a physical incident
resulting in either substantial physical pain or hurt
to the worker’s body, or any impairment of physical
condition, a “physical injury” has occurred. Since
West sustained cuts and abrasions during the 1989
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assault and suffered soreness for several days
thereafter, we believe the ALJ could have reasonably
inferred that the petitioner experienced substantial
physical pain even though the physical incident
produced no impairment. Jackson v. General
Refractories Company, Ky., 581 S.W.2d 10 (1979).
* * * *
We further hold that for purposes of Randall v.
Pendland, supra, and Haycraft v. Corhart Refractories,
supra, a claim involving a series of traumatic events
ultimately resulting in a compensable psychological,
psychiatric or stress-related change in the human
organism may originate from a single “physical injury.”
The 1996 definition of “injury” set out above speaks in
terms of “physical injury,” not “physical injuries”
even though the definition acknowledges that harmful
change may result for a series of traumatic events.
Therefore, West’s claim would not be barred even though
her subsequent traumatic episodes after September 1989
involve no specific physical incident and are purely
“mental-mental” in nature.
We agree with the Board’s conclusion that the
psychological or psychiatric stress-related change in the human
organism must originate with a work-related physical
injury/incident in order to be characterized as an “injury” under
the amended version of the statute.
This interpretation comports
with the language of the statute and is surely consistent with
the beneficent purpose underlying the Workers’ Compensation Act.
See Newberg v. Weaver, Ky., 866 S.W.2d 435 (1993).
Moreover, we
agree with the Board’s analysis that the work-related physical
incident suffered by West (the 1989 assault) was of so severe and
sufficient proportion to serve as the predicate of her resulting
psychological trauma so as to trigger the statute.
Hence, we
affirm the Board under the precedent of Western Baptist Hosp. v.
Kelly, Ky., 827 S.W.2d 685 (1992).
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE WEST:
Robert L. Swisher
Lexington, KY
David B. Allen
Lexington, KY
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