WAL-MART STORES, INC. VS. COMPENSATION SMITH (ROBERTA), ET AL.
Annotate this Case
Download PDF
RENDERED: JUNE 13, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001469-WC
WAL-MART STORES, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-05-66798
ROBERTA SMITH; HON. JOHN W.
THACKER, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, NICKELL, AND TAYLOR, JUDGES.
NICKELL, JUDGE: Wal-Mart seeks review of a June 22, 2007, opinion of the
Workers’ Compensation Board (“Board”) affirming an opinion of Administrative
Law Judge John W. Thacker (“ALJ”). The ALJ awarded benefits to Roberta
Smith (“Smith”) for a work-related low back injury and for psychological trauma,
both of which flowed from an explosion that shook the Wal-Mart where Smith
was employed as a greeter. While the ALJ concluded Smith’s back injury was
temporary, he found she qualified for a fifteen percent permanent psychological
impairment rating for which income benefits, enhanced by a multiplier of 3.8,1
were appropriate. Alleging conflicting evidence, Wal-Mart argued first that Smith
failed to prove she suffered a work-related injury and second that Smith was
erroneously awarded benefits for a psychological condition in the absence of any
physical injury. The Board affirmed the ALJ’s opinion and Wal-Mart has now
appealed to us. For the reasons explained herein, we affirm.
THE FACTS
The Wal-Mart Supercenter in Hazard, Kentucky, sits atop a reclaimed
strip mine. Blasting still occurs in the vicinity. At about 10:30 a.m. on October
19, 2005, a mining blast2 shook the store and caused debris to penetrate the roof.
A customer inside the store told a television news crew she thought the blast was
an earthquake. Another said she thought it was bullets or gunshots; she said there
was a “big noise” followed by a “big shake” and “it scared me to death.” Soon
Pursuant to Kentucky Revised Statutes (“KRS”) 342.730(1)(b), Smith’s fifteen percent
permanent partial impairment was multiplied by a factor of one. Under KRS
342.730(1)(c)(1), Smith’s income benefits were multiplied by a factor of three because
she was unable to return to work. These benefits were then enhanced by another eighttenths of a percent under KRS 342.730(1)(c)(3) because Smith was more than sixty years
of age at the time of her injury and she had completed only the tenth grade. Ultimately,
her benefits were enhanced by a total of three and eight-tenths (3.8) percent.
1
It does not appear a third-party action claiming negligence was filed against the mining
company.
2
2
after the blast and the shower of debris subsided, the Wal-Mart store was closed to
allow clean-up to occur.
Smith was born August 23, 1941. She has completed the tenth grade.
She was working inside the Wal-Mart as a door greeter at the time of the blast.
While Smith was uncertain of exactly what happened to her, she experienced neck
and back pain and a severe headache soon after the blast. She surmised she must
have been thrown into or fallen against a large ice chest inside the store. She was
placed in a neck brace and transported from the store via ambulance.
Smith filed a Form 101 on November 17, 2005, alleging her “back,
neck and nerves” were injured when she was “knocked backward following an
explosion near the Wal-Mart store.” She was treated with prescription drugs and
diagnostic studies. According to the form, Smith joined the workforce in 1963.
She has worked as a waitress, assistant restaurant manager, nightclub manager and
housekeeper. She first worked at Wal-Mart during the 2002 holiday season and
then returned to Wal-Mart in 2003 as a part-time cashier and ultimately as a fulltime door greeter. Smith has not worked since the blast. She testified at her
deposition that she receives regular Social Security retirement benefits.
Smith had health issues prior to the October 2005 explosion. She is a
breast cancer survivor. She was diagnosed with high blood pressure in 2002. She
was treated for chronic obstructive pulmonary disease (COPD) between 1997 and
March 2005 and remains under a doctor’s care for COPD. According to her Form
3
101, since 1998 she has received treatment and remains under a doctor’s care for
her back, neck and nerves although she denies having any sort of trauma to her
neck or back prior to the explosion. In 2002, Smith hit an oncoming car head-on
and broke her left foot. At the time of the explosion she had a prescription for
Lorcet for back pain but rarely took it. After the blast she takes Lorcet every six
hours and still has pain. She has had a prescription for Paxil since 1997 for panic
attacks and anxiety. Smith testified at the final hearing she had not had a panic
attack in the six years prior to the explosion, but has had several since the blast.
Smith has been prescribed Klonopin for her nerves since about 2002 when her
husband experienced a heart attack.
Smith was transported to the emergency room via ambulance soon
after the explosion. A CT scan of her head was negative. An MRI of her lumbar
and cervical area, taken two days after the blast, revealed only arthritic changes.
She had no range of motion difficulty although her paralumbar area was tender.
Eight days after the explosion she was seen by Dr. Leelamma Varkey
at Appalachian Regional Healthcare, Inc. (ARH). In describing the blast she
stated:
4
there was some blasting nearby and rocks came in, but
the rock did not hit her. Because of the sudden sound
and blast, she was shaken and she fell down. She said
that she was near the ice machine and her back hit the ice
machine. She said that she does not remember anything
that happened after that. She was told by people around
her she was unconscious. She is now complaining of
back pain and also nightmares. She said that she cannot
sleep and all of these things are coming back to her.
Dr. Varkey suspected Smith’s nightmares were Post Traumatic Stress Disorder
(PTSD). He doubled her Paxil and Klonopin dosages and referred her to a
psychologist. Due to a history of anxiety and depression, the psychological
evaluation was delayed for two days. Injections were recommended, but workers’
compensation denied the claim and Smith determined she could not afford to pay
for them herself. At her deposition, Smith testified she had been referred for
psychological counseling but workers’ compensation had refused to pay for it and
she said she could not afford to pay for it herself. Smith also testified Wal-Mart
refused to pay a hospital bill in the amount of $4,453.41.
In describing her daily symptoms, Smith stated at her deposition:
I constantly have back pain. It’s – sometimes it
increases. It gets bad. I may try to raise up and it’s like
a catch in it, but I have a ache laying down, sitting,
standing. They’re (sic) no pattern for it. And it’s –
sometimes it’s not half as bad as other times. And my
neck: I’m not having all that much problem with it, but
it’s my back that I’m really having the problem with.
She went on to explain she did not like taking Lorcet because it is addictive. She
stated,
5
there’s (sic) some days I have to take as high as three.
Then they (sic) may be a day that I take, you know, one
or two. And before I got hurt, even though I, you know,
I had the Lorcets, I didn’t – I didn’t take them hardly
ever. And the Klonopins: They – they’ve brought them
up now to three a day.
We now recite the ALJ’s summation of Smith’s testimony and the medical
evidence:
1. Testimony of the plaintiff. The
Administrative Law Judge has considered all of the
testimony of the plaintiff at her deposition and the final
hearing including the following. The plaintiff testified
by deposition on March 8, 2006. The plaintiff first
worked for Wal-Mart in 2002 and began work in
October of 2003 as a cashier part-time. She made the
transition to full-time status and moved to the position of
door greeter. She was stationed at the door by herself.
Theresa Caldwell was her immediate supervisor and
Greg Salyer was the store manager. She worked the 7:00
a.m., to 4:00 p.m., shift. On October 19, 2005 at
somewhere around 10:30 there was a very bad explosion.
It just rocked the building and it felt like the floor was
vibrating. She stated it was just pitching her around and
she was pretty sure that she hit an ice machine but she
couldn’t honestly say that she did but she had to hit
something because her back right away started bothering
her. She stated there was a lady down at the door and
she went to the door and she didn’t know what she did
but she did remember going to the door to her. And then
her supervisor, Theresa, came up to her and she said
[Smith] go sit down you don’t look good and about that
time she started vomiting and went to the bathroom. She
stated she realized that her back was hurt, was having
pain in her lower back and her neck was real sore. An
ambulance was called and she was taken to the Hazard
ARH Emergency Room. She underwent MRIs of her
low back and neck approximately two days after the
event, on October 21, 2005. She was given pain pills, of
(sic) Lorcets, and they increased the Klonopin that she
6
was taking previously. She was taking Paxil for anxiety
prior to the accident for panic attacks.
The plaintiff testified at the final hearing of
September 26, 2006. The plaintiff testified that she was
standing near the door next to the podium, heard a large
explosion, the building shook and her back was hurting.
Her supervisor, Theresa Caldwell, told her to sit down
and at about that time she started vomiting. After the
explosion happened she was having pain in her back and
her left leg was hurting and she had a bad headache. She
testified that her current problems are that her nerves
have got a lot worse and her back is a lot worse. Before
the accident she was taking a 0.5 Klonopin and now she
is taking a 1.0 Klonopin, which is a lot stronger. She
was on medication for her back prior to the injury but
she did not take the pills all the time. Now she takes
Lorcet every six hours, and they do not completely take
away all of her pain. She testified that she is limited on
physical abilities and can’t run a sweeper or clean
windows, has trouble walking, cannot lift over six or
eight pounds and cannot sit for more than half an hour.
She stated that she was jarred into something but cannot
remember what it was and surmised it was an ice
machine.
2. The medical report of Dr. Robert
Hoskins. The plaintiff gave a history to Dr. Hoskins of
being injured on 10/19/05 while working as a greeter at
Wal-Mart in Hazard, Kentucky when she injured her
spine when she fell backwards following a large rock
blast nearby. She reported that the blast shook the floor
and knocked her into the sharp corner of an ice machine.
She was then taken to Hazard ARH by ambulance where
she was examined and released. Diagnostic testing
including MRIs dated October 21, 2005 of the cervical
spine and lumbar spine. The MRI of the cervical spine
was read as advanced degenerative disk changes at
multiple levels and erosion involving the dens probably
related to arthritis and the MRI of the lumbar spine was
read as advanced degenerative disk changes including
bulging disks at several levels most notably at L2-3 and
7
L4-5. Dr. Hoskins’ diagnosis included multilevel
cervical degenerative disc bulging, degenerative facet
joint disease, and neural foraminal stenosis, cervical
sprain/strain, cephalgia, multilevel lumbar degenerative
disc disease, lumbosacral sprain/strain, and left
lumbosacral radiculitis. Dr. Hoskins testified that with
reasonable medical probability, the patient’s injury was
the cause of her complaints; that using the most recent
AMA Guides the patient’s present whole body
impairment is 10% and the patient did have an active
impairment prior to this injury, with active impairments
to the cervical and lumbar spines, which were
asymptomatic and not limiting her ability to perform
ADLs. Dr. Hoskins opined that the plaintiff retains the
physical capacity to return to the type of work performed
at the time of the injury.
3. The medical reports of C. Christopher Allen,
Phd. Dr. Allen examined the patient on May 2, 2006.
Dr. Allen’s diagnosis was post traumatic stress disorder,
chronic and that the patient symptoms are directly related
to her experiences in a Wal-Mart Department Store in
October of 2005. Dr. Allen further opined that it is
likely that a component of the patient’s emotional
distress is related to her pain-related difficulties and that
component will likely be experienced as long as she
experiences pain. Dr. Allen opined that the patient had a
15% impairment, using Chapter 14 of the most recent
AMA Guides to Evaluation of Permanent Impairment
and the patient’s classification of impairment is Class 2.
He further opined that the patient did not have an active
psychological impairment prior to the injury and, that
within reasonable medical/psychological probability, the
patient’s psychological complaints are caused by the
work-related injury. At this point, the patient is not
capable of performing adequately in any workplace with
the physical characteristics of Wal-Mart without
significant psychological distress and would need
frequent breaks and provision for brief counseling
support on the job. Dr. Allen stated Ms. Smith was
8
evaluated in this office on 5-01-20063 and was found at
that time, unfortunately to have responded to
psychological test items either inconsistently or in a way
which suggests possible exaggeration of functional
complaints.
4. The medical records of Dr. Ronald Mann.
Dr. Mann’s records include treatment notes of multiple
visits for ptsd and neck and back pain secondary to an
injury.
5. The medical records of Dr. Leelamma
Varkey. Dr. Varkey saw the patient at the Hazard ARH
Family Health. On October 28, 2005, Dr. Varkey noted
that there was some tenderness in the paralumbar area;
otherwise, there was no range of motion difficulty, he
noted that generally the patient was very anxious, she
was sitting and crying, very upset, and he referred her to
a psychologist. Dr. Varkey saw the patient on October
31, 2005 and opined a CT scan done of the head and
neck in the ER was negative. He found tenderness in the
paraspinal area in the low back LS spine area. Dr.
Varkey saw the patient on November 17, 2005, and his
assessment was that there was arthritic changes in the
cervical vertebrae and low back pain and he told the
patient that these constitutes (sic) degenerative changes
and it may not be due to the injury and this injury could
have probably triggered the pain. By letter of November
23, 2005, Dr. Varkey noted that Ms. Smith had a history
of chronic back (sic) for which she was being treated
with pain medication and she was working at that time
and the injury did not cause any acute finding which
would hinder her from working with any restrictions. He
also noted that she gives a history of depression and
anxiety for which she was taking Paxil and Klonopin.
Dr. Allen, a licensed clinical psychologist, evaluated Smith twice, first on May 2, 2006,
and again on August 16, 2006. A separate account of the May evaluation is not included
in the record. In his written report of the second evaluation, Dr. Allen stated he thought
Smith was exaggerating her responses during their May meeting but since her August
responses were consistent with those she had given previously, Dr. Allen deemed Smith’s
profile to be valid.
3
9
He increased her Klonopin and referred her to a
psychologist. He noted that her physical condition did
not require her to be completely off from her type of
work.
6. The medical record of Dr. Kenneth B.
Graulich. Dr. Graulich performed an independent
medical examination on March 6, 2006. Dr. Graulich
performed an evaluation and records review. He opined
that there was no lumbosacral paraspinous muscle
spasm. She was severely tender to very gentle palpation
to the right of the lumbosacral spine and had moderate to
severe pain with all lumbar movements in the standing
position. Dr. Graulich’s impression was 1) simple
whiplash injury to the lumbar spine superimposed on
moderate degenerative changes and a history of
preexisting low back pain most likely due to age related
degenerative arthritis, and this should have been a mild
soft tissue injury with no reason she should not have
returned to prior state by this time; 2) simple whiplash
injury to the cervical spine superimposed on moderate
prior degenerative changes per the imaging study
reports, essentially resolved by history, with the same
statements regarding mechanism of injury and severity as
given in impression #1 apply here as well; and 3)
possible post-traumatic stress disorder versus
exacerbation of underlying and preexisting
anxiety/depressive disorder. He further opined that there
is definite evidence of preexisting low back pain and a
preexisting dormant potentially painful condition (sic)
the neck; he did not find that the patients (sic) current
neurologic complaints and overall state of health are
causally attributed to her work activity at Wal-Mart. Her
lumbar injury would appear to have been quite mild and
she should have returned to her preexisting state within a
short period of time, even if it were not mild but rather a
severe soft tissue injury she should have returned to her
preexisting state in 6-8 weeks. He would place no work
restrictions on the patient due to the nature of the injuries
she allegedly suffered in the work incident; the prognosis
is that the patient has recovered from any neurologic
injury suffered in the incident; and the patient’s
10
description of the mechanism of injury would agree with
her physical condition if she either jerked her back as a
response to the blast or mildly struck her back on the ice
chest and in either case the injury would have been
minor and relatively rapid recovery expected.
7. The medical report of Dr. Douglas Ruth. Dr.
Ruth examined the patient on March 28, 2006. Dr.
Ruth’s overall diagnosis of the patient’s current
psychological condition was a presumptive psychiatric
diagnosis, based upon the history provided by Mrs.
Smith and with the assumption that her account is valid,
of post traumatic stress disorder. He opined that the
psychiatric symptoms she described currently are
compatible with a diagnosis of post traumatic stress
disorder as the result of the emotional trauma associated
with the October 19, 2005 incident; and he could not
assign an impairment rating until treatment and a state of
maximum medical improvement is attained. Dr. Ruth
further opined that, should a hypothetical impairment
rating be desired, based upon her current psychiatric
symptoms, according to the AMA Guides 5th Edition, she
has a Class 2, mild psychiatric impairment which
translates to a 6% psychiatric impairment.
8. Testimony of Greg Salyer. Mr. Salyer
testified by deposition of September 25, 2006. Mr.
Salyer is the store manager for the Wal-Mart in Hazard.4
On October 19, 2005, Ms. Smith was working on the
general merchandise side of the store. Mr. Salyer
testified regarding a video tape of the general
merchandise side of the store on October 19, 2005 with a
time of 9:46, showing the people greeter, Roberta Smith.
The tape showing the sidewalk debris just hitting the
sidewalk is timed 10:17:28. The court reporter noted a
mix-up in exhibits A & B of VHS tapes with exhibit A
video tape being filed and exhibit B video tape not being
filed. The video tapes do not show everything in the
store during the time period in question and the video
tapes do not show the plaintiff at all times either.
4
Salyer was not on store premises during the blast.
11
9. The defendant/employer filed an AWW-1 with
an average weekly wage of $209.09.
10. The plaintiff filed a video of WYMT
television showing the plaintiff in a neck brace and being
taken to an ambulance.
Deeming Smith’s testimony to be the most credible proof of whether
she was affected by the blast, and finding Smith’s testimony to be supported by the
medical opinion of Dr. Graulich, the ALJ found Smith sustained a work-related
injury to her low back as a result of the October 19, 2005, blast. However, the
ALJ concluded it was only temporary since Dr. Graulich stated the simple
whiplash injury to her lumbar and cervical spine should have healed in a
maximum of six to eight weeks.
The ALJ further found Smith suffered a fifteen percent permanent
partial impairment due to PTSD resulting from emotional trauma. Smith testified
she has been plagued by nightmares since the explosion. The ALJ found the
medical opinion of Dr. Allen to be the most credible on this point. In a report
dated August 23, 2006, Dr. Allen wrote:
[t]hese results, therefore, strongly confirm a diagnosis of
PTSD, Chronic, provisionally rendered in May of 2006.
It is clear, as well, the patient reports significant painrelated difficulties which likely reciprocally interact with
her emotional state. It is quite clear, moreover, that the
patient’s symptoms are directly related to her
experiences in a Wal-Mart Department store in October
of 2005.
12
Dr. Allen’s diagnosis of PTSD was confirmed by Dr. Ruth, a physician certified in
psychiatry, who wrote in his report dated March 31, 2006, the psychiatric
symptoms described by Smith resulted from “emotional trauma associated with the
10/19/05 incident.” Dr. Allen opined Smith could resume work physically but not
emotionally. He stated she could not return to work at Wal-Mart or a similar
establishment without “significant psychological distress” and without frequent
breaks and access to on-site job counseling. While Dr. Allen assessed a fifteen
percent impairment rating, Dr. Ruth said he could not assign a disability rating
until Smith reached maximum medical improvement.
The ALJ awarded Smith temporary total disability benefits in the
amount of $139.39 for a period of eight weeks based on Dr. Graulich’s statement
that Smith’s simple whiplash injury to her back and neck should have healed
within a maximum of eight weeks. Due to Smith’s psychological symptoms, the
ALJ also awarded her weekly income benefits for permanent partial disability
based on a rating of fifteen percent multiplied by a factor of 3.8 which amounts to
$79.46 for the 425 weeks permitted by Kentucky Revised Statute (KRS)
342.730(1)(d). Pending appeal, Wal-Mart has paid nothing.
Wal-Mart filed a petition for reconsideration seeking a correction
regarding the two store surveillance videotapes it had submitted as evidence. In
denying the petition, the ALJ wrote in relevant part:
[t]he Administrative Law Judge has received video
tapes A & B and the Summary of Evidence Presented
13
should be amended accordingly. The tapes are
contemporaneous with the incident on October 19, 2005
and show the interior and exterior of the Wal-Mart Store
at the relevant times. The tapes have a jerky motion and
are composed of shots every three seconds. The tapes
show the plaintiff at her work station standing, walking
and on a stool next to a cooler. The tapes are not of a
sufficient quality to note floor vibration or lack thereof,
due to the gap between shots.
2. The Administrative Law Judge finds that he
cannot rely on the video tapes to disprove that the
plaintiff suffered a jerk due to floor vibration as a
mechanism of injury even if she did not get thrown
against the cooler. Dr. Graulich opined that the
mechanism of injury was either a jerk or strike against
the cooler. And, the plaintiff testified as to the vibration
and being pitched around, but was unsure if she struck
the cooler.
3. The Administrative Law Judge finds the
testimony of the plaintiff and Dr. Graulich to be the most
credible that the plaintiff suffered an injury due to the
floor vibration resulted in a whiplash injury and this
physical injury resolved, although the resulting
psychiatric condition has not resolved.
As a result of the petition, the ALJ’s original opinion was corrected, but the
benefits award was unchanged.
Wal-Mart appealed the ALJ’s opinion to the Board arguing store
surveillance videotapes proved the blast did not affect Smith in any way. WalMart also emphasized inconsistencies in Smith’s many descriptions of her reaction
to the blast in the Form 101 she signed, her statements to doctors, her deposition,
and her testimony at the final hearing. After reviewing the evidence, the Board
14
stated the ALJ’s opinion was based on substantial evidence and there was no
reason to disturb it.
Wal-Mart’s second claim, based upon the definition of “injury” found
in KRS 342.0011(1), was that Smith could not receive benefits for a psychological
condition absent a physical injury. The Board stated permanent physical harm is
not statutorily required for an award of benefits due to a psychological change.
Since testimony from both Dr. Allen and Dr. Ruth supported the onset of PTSD
following the blast, the Board reasoned the ALJ’s findings and conclusions were
not outside the realm of reason such that they had to be disregarded as a matter of
law. Hence, the Board affirmed the ALJ’s opinion and this appeal followed.
ANALYSIS
Wal-Mart advances two issues on appeal to this Court. The first is
that the ALJ (and the Board) erroneously believed Smith’s testimony even though
she told multiple versions of how the blast impacted her body and store
surveillance videotapes showed she was not knocked to the ground and did not fall
against the ice cooler. As the claimant, Smith had the burden of proving every
element of her claim, including that her low back injury was work-related.
Under KRS 342.285, an ALJ's decision is "conclusive and binding as
to all questions of fact" and the Board must not "substitute its judgment for that of
the [ALJ] as to the weight of evidence on questions of fact." KRS 342.290 limits
our scope of review to that of the Board and to errors of law arising before the
15
Board. In Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977),
our Supreme Court confirmed a fact-finder may reject any testimony and believe
or disbelieve various parts of the evidence, regardless of whether it comes from
the same witness or the same adversary party's total proof. In Paramount Foods,
Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), our Supreme Court reiterated the
fact-finder has sole discretion to determine the quality, character, and substance of
the evidence. Since the ALJ ruled in Smith’s favor, to succeed on appeal, WalMart must now demonstrate the ALJ’s conclusion was not supported by
substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736
(Ky.App. 1984). As an appellate court, we will defer to the ALJ's decision and
will intervene only if the ALJ has overlooked or misconstrued controlling legal
authority or has evaluated the evidence in such a way that his opinion works a
“gross injustice.” Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992). After reviewing the entire record, including the surveillance videotapes,
and the relevant case law and statutes, we see no reason to disturb the ALJ’s award
of benefits or the Board’s opinion affirming the ALJ’s decision. Therefore, we
affirm.
When evidence is conflicting, as it was in this case, it “is within the
exclusive province of the ALJ” to determine what to believe and what to reject.
Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Here, the ALJ found
Smith’s own testimony to be the most credible on the issue of whether she was
16
injured. While there may have been variations in her accounts of what happened
during and immediately after the blast, the basic components of her story remained
the same. There was a sudden explosion, it shook the Wal-Mart, the floor
vibrated5 and immediately thereafter Smith experienced back and neck pain and a
severe headache. Smith repeatedly admitted she did not really know what
happened to her but merely surmised her back and neck made contact with the ice
cooler because that was the only object near her and she experienced pain after the
explosion. Dr. Graulich’s report confirmed the pain Smith described would be
consistent with jerking in response to the blast or mildly striking her back on the
ice chest. Smith’s testimony was substantial and sufficient to support the ALJ’s
finding of a work-related injury.
Wal-Mart makes much ado about its surveillance video and even
states in its brief that it “clearly shows that [Smith] was completely unaffected by
the blast event itself during and immediately after its occurrence.” We have
watched the surveillance tapes and they are anything but clear. They are a jerky
series of still photos taken a substantial distance away from Smith. The tapes
jump from one vantage point to another and the time stamp on the frames is
Without elaboration, Wal-Mart states in its brief to this Court, “[s]imple floor vibration
was never asserted as a mechanism of injury.” Based upon the record provided to us,
Smith has maintained all along that the force of the explosion which shook the Wal-Mart
caused her injury. An explosion strong enough to shake the building would include
vibration of the floor. Nevertheless, Wal-Mart did not advance this argument in its
petition for reconsideration or mention it in its brief to the Board. We will not consider
for the first time on appeal an argument that was not previously presented to the ALJ or
the Board for its consideration. Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.
1976).
5
17
suspect due to a discrepancy between the two cameras/recorders. As the store
manager admitted during his deposition, the tapes do not capture everything that
happened in the store before, during or after the blast and they do not depict Smith
at all relevant times. In light of these flaws, the ALJ correctly discounted the
value of the surveillance tapes since they could neither establish nor eliminate
whether Smith sustained an injury or how it occurred.
Wal-Mart cites Young v. L.A. Davidson, Inc., 463 S.W.2d 924 (Ky.
1971) for the proposition that mere speculation about the cause or workrelatedness of an injury is insufficient to satisfy KRS 342.0011(1). It then
chastises the ALJ for relying upon a statement by Dr. Graulich that jerking or
mildly striking her back on the ice chest could have resulted in Smith’s neck pain,
back pain and headaches. We see no error here. The ALJ stated he found Smith’s
own testimony to be the most credible proof on the issue of causation and workrelatedness. He merely noted that Dr. Graulich’s medical report and opinions
supported Smith’s statements about how she injured her back. We cannot say the
ALJ’s finding that Smith sustained a temporary work-related injury to her low
back as a result of the blast was not supported by substantial evidence. Therefore,
like the Board, we will not disturb the ALJ’s opinion.
Wal-Mart’s other complaint is that income benefits cannot be
awarded for a permanent psychological condition unless there is a physical injury.
As noted previously, there was substantial evidence upon which the ALJ found
18
Smith’s low back was injured by the blast. We have scoured KRS 342.0011(1)
and the cases interpreting same and see no requirement that only a permanent
physical injury can trigger a compensable psychological condition. In the context
of workers’ compensation, 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.
“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 stress-related change in the
human organism, unless it is a direct result of a physical
injury.
KRS 342.0011(1). Under this definition, so long as a psychological
change is a direct result of a physical injury it is compensable. Permanency of the
physical injury is not required. See Lexington-Fayette Urban County Government
v. West, 52 S.W.3d 564, 567 (Ky. 2001) wherein a police officer was assaulted by
a knife-wielding suspect in 1989. While the officer’s physical injuries were
limited to temporary “scratches, abrasions, and soreness,” in 1997 she was
diagnosed with work-related PTSD. Compensation for the officer’s psychological
condition was not foreclosed just because her scratches and abrasions had healed
and her soreness had abated. The same can be said of Smith’s condition. Her low
19
back injury was deemed temporary, but her PTSD was deemed permanent and
both resulted from the October 19, 2005, explosion. Because the PTSD directly
resulted from a physically traumatic event (the explosion), Smith sustained an
“injury” under KRS 342.0011(1). See Kubajak v. Lexington-Fayette Urban
County Government, 180 S.W.3d 454, 459 (Ky. 2005) (compensation denied for
failure to show PTSD was direct result of physical injury).
Citing Newman v. John Deere Ottumwa Works of Deere & Co., 372
N.W.2d 199 (Iowa, 1985), Wal-Mart argues, “Kentucky has joined the majority
view that causation cannot be established as a matter of law on the basis of
individual subjective misperception of their work ability.” Wal-Mart goes on to
say, “the Iowa Supreme Court emphatically ruled [in Newman] that an employee’s
belief, no matter how sincere, of work place stress, is inadequate as a matter of law
to show causality between a mental condition and employment, if it does not
correspond with provable objective facts.” It occurs to us that if Kentucky has
adopted this view, as Wal-Mart says we have, there should be Kentucky authority
on point and Wal-Mart would have cited it to us. Wal-Mart even says this view
was the “underlying rationale for the amendment to KRS 342.0011(1) in 1994.”
Our review of the historical and statutory notes to KRS 342.0011 has not
unearthed support for Wal-Mart’s statements. Therefore we see no reason to
ignore Smith’s statements about the pain she experiences daily.
20
The ALJ found Smith had a fifteen percent permanent partial
impairment due to PTSD as diagnosed by Drs. Allen and Ruth, both of whom
attributed her psychological condition to the explosion at Wal-Mart. Dr. Allen
believed Smith was physically capable of returning to work as a door greeter at
Wal-Mart, but found her psychological condition prevented her from returning to
work without being in significant distress. He also stated she would require
frequent breaks and on-site counseling if she resumed working. Based upon the
medical opinion of Drs. Allen and Ruth, we have no reason to disturb the ALJ’s
award of income benefits for PTSD.
For the foregoing reasons, the opinion of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Bryan Hubbard
James E. Skaggs
Clark & Ward
Lexington, Kentucky
McKinnley Morgan
Morgan, Madden, Brashear & Collins
London, Kentucky
21
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
