CHARLES A. KUBAJAK, JR. V. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, ET AL
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RENDERED : DECEMBER 22, 2005
TO BE PUBLISHED
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2003-SC-0974-WC
CHARLES A. KUBAJAK, JR.
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-2293-WC
WORKERS' COMPENSATION BOARD NO. 02-0087
LEXINGTON-FAYETTE URBAN COUNTY
GOVERNMENT ; HON . ROGER D . RIGGS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
It is undisputed that the claimant suffers from post-traumatic stress disorder, that
the condition is disabling, and that it is work-related . An Administrative Law Judge
(ALJ) determined, however, that the condition was due to observing gruesome crime
scenes . Therefore, it was not an "injury" as defined by KRS 342 .0011(1) and was not
compensable . See Lexington-Fayette Urban County Government v. West, 52 S.W.3d
564 (Ky. 2001). Having determined that the evidence did not compel a finding that the
condition resulted from a physically traumatic event, the Workers' Compensation Board
(Board) and the Court of Appeals have affirmed . Likewise, we affirm.
The claimant began working as a police officer for the Lexington-Fayette Urban
County Government in October, 1986. His claim alleged that as of January 19, 2001,
he suffered from post-traumatic stress disorder, panic attacks, and other psychological
or psychiatric conditions and that he had sustained a cumulative trauma psychiatric
injury resulting from the "highly stressful duties required by the job."
After completing the police academy, he began working on patrol . His duties
included responding to accidents, taking burglary reports, and attempting to deter crime.
He stated that he was involved in a number of fights over the years. The worst occurred
early in his career, when he stopped a vehicle in which four individuals were riding .
After the driver exited the vehicle, he became hostile, and a fight resulted . The claimant
had to draw his weapon and then wait for back-up to arrive and assist him . He stated
that he missed no work and required no medical treatment due to the incident.
On May 28, 1990, the claimant transferred to the Crime Scene Investigation
Unit, where he was responsible for collecting, documenting, and preserving evidence to
be introduced in court . More specifically, he photographed crime scenes, recovered
latent fingerprints, collected evidence, and appeared in court. The work involved a daily
exposure to the details of scenes of extreme and graphic violence .
In the early to mid-1990s, the claimant began to experience headaches and
stomach discomfort . His symptoms worsened appreciably after working the scene
where two fellow officers were shot. On occasions, he experienced chest pains severe
enough that he went to the hospital, thinking he was having a heart attack . The unit
was short-staffed, and officers were subject to be called out at any time . Thus, he
attributed his symptoms to "burn out" from the long hours and irregular sleep patterns
that resulted . Sometime in the early 1990s, Dr. Bailey discussed the possibility that the
origin of the symptoms might be psychological, but the claimant requested that nothing
be put in his records that would jeopardize his employment.
At some point, the claimant began to have nightmares and thoughts he called
"hauntings," in which he relived some of the crime scenes he had worked. He also
realized that he had over-reacted to certain situations, explaining that he had feared for
his life and drawn his weapon when an elderly woman whose vehicle was stopped
began to reach under the seat. Convinced that he needed a job with regular eight-tofive hours, he requested a transfer. On August 5, 1996, he was transferred to the Auto
Theft Unit. Yet, the flashbacks and nightmares became more intense and much more
frequent, and he began to withdraw from contact with other people.
The claimant was transferred to the Robbery Unit in July, 2000 . This involved
everything from purse snatchings to bank robberies and occasional exposures to violent
crime scenes . He testified that he informed superiors at the time that he was
experiencing stress but was not specific about the cause or symptoms . In October,
2000, he was called to the scene of a robbery where a body was found. As he
approached the home and saw the medical team, he went into a panic and broke down .
Shortly thereafter, he told the Chief that his job was too stressful and was endangering
his health .
On October 30, 2000, the claimant transferred to Community Service, a light-duty
assignment . He explained that thirty days of light duty were required before requesting
disability retirement . During this period, he contemplated suicide and recognized that
he needed professional help. He sought treatment with Dr. Allen, who diagnosed posttraumatic stress disorder and informed him of the diagnosis on December 11, 2000.
The claimant was placed on medical leave on January 19, 2001, and testified
that he has not worked since then . He applied for disability retirement shortly thereafter .
It was approved following evaluations by Drs . Ruth and Ludwig, both of whom provided
evidence in his workers' compensation claim.
The claimant testified initially that he suffered no "physical" injuries as a police
officer . He testified later that he sustained a whiplash injury in a vehicular accident and
had been involved in physical scuffles on at least two occasions. He stated that he
sustained "bruises and abrasions" in the incidents but sought no medical treatment . His
argument to the ALJ was that the physically traumatic events contributed to causing his
psychiatric condition; therefore, it directly resulted from a physical injury and was
.'
compensable under West, supra
Dr. Ludwig, a psychiatrist, diagnosed major depressive disorder and posttraumatic stress disorder . He attributed the conditions entirely to the claimant's
exposure to scenes of violence and death in his work. In his opinion, they were
permanently and totally disabling with regard to the claimant's ability to work as a police
officer.
Dr. Ruth, a psychiatrist, examined the claimant and concluded that he could not
return to work as a police officer. In his opinion, the claimant's post-traumatic stress
disorder was caused by repeated exposure to signs of violence while investigating
crime scenes . He assigned a 15% AMA impairment under the last edition that provided
percentage ratings.
Dr. Allen, the treating clinical psychologist, took a history consistent with that to
which the claimant testified . He diagnosed post-traumatic stress disorder due to the
At oral argument, the claimant referred to testimony by Dr. Granacher regarding
changes that occur in the brains of individuals with post-traumatic stress disorder .
Relying on McCowan v. Matsushita Appliance Co. , 95 S.W .3d 30 (Ky. 2002), he argued
that those changes would be compensable as physical changes that resulted from
emotional trauma ; however, the argument was not preserved for our review because he
failed to raise it to the ALJ .
cumulative stress of the claimant's work. He thought that, with treatment, the claimant
would be able to perform work other than as a police officer.
In a supplemental report, dated May 14, 2002, Dr. Allen stated that the claimant
reported several occasions in which he was injured while in the line of duty and that
some of those altercations appeared consistently in his nightmares . One particular
event was an incident in which he found it necessary to pull his gun on a knife-wielding
assailant following a scuffle in which he was injured . In Dr. Allen's opinion, repeated
physical harm or threat of physical harm had increased the claimant's general level of
arousal and anxiety. Other events included an exposure to blood at various crime
scenes followed by information that the blood was positive for HIV or Hepatitis C. He
concluded, therefore, that the physical nature of the claimant's work and "consequent or
potential injuries" were "an important part of the core experiences which led to his
Posttraumatic Stress Disorder ."
When deposed by the employer, Dr. Allen testified that he had not seen the
claimant since May 9, 2001, when the claimant stopped by his office, talked with him
briefly about scuffles and altercations as well as exposure to blood products, and asked
him to clarify that they had discussed such events . Dr. Allen stated that he agreed to do
so because they had discussed the events, and they "were part of the larger pattern of
posttraumatic stress that he had been experiencing and had consistently experienced ."
Therefore, he viewed the supplemental report as being a clarification of his diagnosis
and the reason for the diagnosis .
Dr. Allen testified that he had recorded no physically traumatic event involving
the claimant and was not aware that any of the scuffles or altercations the claimant
mentioned required medical treatment . He was questioned about whether any physical
events in which the claimant was involved had evoked the intense fear, helplessness, or
horror that the DSM IV required for a diagnosis of post-traumatic stress disorder . He
stated that during physical altercations, such as being confronted by a knife-wielding
husband during a domestic disturbance, the thought that one might be injured
significantly is going to occur and did occur to the claimant . However, such events
happened "within the context of a much larger picture of very traumatic, horrific events
and situations that he has dealt with ." Dr. Allen characterized an attempt to attribute the
claimant's condition to any particular event as splitting hairs .
When questioned further about any physical injuries the claimant may have
reported, Dr. Allen noted that it was not his experience for an individual to report a
medical problem such as a cut that required stitches as being a significant injury unless
it required ongoing medical treatment . According to his records and recollection, the
claimant never reported that he suffered any physical harm although he did mention
scuffles, altercations, and exposures to situations that he perceived as being potentially
life-threatening . Dr. Allen explained that two .classes of situations were involved,
situations in which the claimant perceived the potential of personal harm and those in
which he witnessed extraordinarily horrific crime scenes . He attributed the claimant's
condition to the cumulative effects of all of his experiences as a police officer,
particularly to the crime scene investigations . He viewed the claimant's investigation of
the 1996 shooting of two fellow officers as being significant in precipitating his
symptoms . Acknowledging that the claimant did not initially relate his symptoms to his
exposure to emotionally stressful situations, Dr. Allen explained that defensive
avoidance, or failing to make a clear connection between symptoms and their cause, is
fairly typical of people with post-traumatic stress disorder .
Dr. Granacher examined the claimant and performed psychological testing. He
reported that the claimant sustained a 20% whole-body psychiatric impairment due to
post-traumatic stress disorder . He attributed the condition to the cumulative emotional
stress of the claimant's work, noting that the condition is common in police and fire
personnel . He thought that the claimant could be productive and successful in a
different type of work .
When deposed by the employer, Dr. Granacher was asked whether the claimant
reported "a physical event that was life-threatening or to which he reacted in horror or
with an intense fear or a feeling of helplessness or hopelessness ." He testified that the
claimant never reported a specific physical event but did repeatedly state that he found
working a crime scene to be stressful . Furthermore, the social history obtained from the
claimant included a number of questions such as whether he had ever been violent ; had
ever been harmed by another; had ever been shot at, stabbed, or beaten by another ; or
had ever threatened to kill another . The claimant answered all in the negative . Later,
Dr. Granacher stated that if a physical event had contributed to the claimant's condition,
he would have expected him to report it . In Dr. Granacher's opinion, the post-traumatic
stress disorder was due to psychological events, particularly having to work the scenes
where two fellow officers were shot. It was in no way a direct result of a physical injury .
After summarizing the evidence, the ALJ noted that the case turned on whether
the claimant's psychological, psychiatric, or stress-related condition was a direct result
of a physical injury . KRS 342 .0011(1) . Yet, only Dr. Allen's testimony even remotely
related the condition to a physically traumatic event . Relying instead on testimony from
Drs. Ruth, Ludwig, and Granacher, the ALJ determined that the claimant's post-
traumatic stress disorder and resulting impairment were not a direct result of a physical
injury and, therefore, were not compensable as an injury.
For the purposes of Chapter 342, the word "injury" is a term of art. Before
December 12, 1996, KRS 342 .0011(1) defined an "injury" as being a harmful change in
the human organism . Since December 12, 1996, KRS 342.0011(1) has defined an
"injury" as being a work-related traumatic event or series of such events that causes a
harmful change in the human organism . The statute requires that a psychological,
psychiatric, or stress-related change in the human organism must be "a direct result of a
physical injury ."
Noting that KRS 342 .0011(1) now defines an "injury" as being a traumatic event
or series of events rather than as being a harmful change, the court determined in West,
supra, that a psychological, psychiatric, or stress-related change in the human organism
must directly result from a physically traumatic event or series of events in order to be
viewed as being an injury. However, it was unnecessary for every traumatic event in a
series causing psychological or psychiatric harm to involve physical rather than
emotional trauma . Id. at 567. Addressing the facts that were present and to be
considered on remand, the court stated that if the first in a series of traumatic events
involves physical trauma and if the event is a direct and proximate cause of the worker's
psychological harm, the worker has sustained an "injury" under KRS 342.0011(1) . Id .
The claimant bore the burden of proving every element of his claim, including the
fact that he sustained an "injury" as defined by KRS 342 .0011(1) . Roark v. Alva Coal
Corp. , 371 S.W.2d 856 (Ky. 1963) . KRS 342 .285 provides that an ALJ's decision is
"conclusive and binding as to all questions of fact." As the finder of fact, it is the
function of the ALJ to determine the credibility of witnesses, to draw reasonable
inferences from the evidence, and to weigh conflicting evidence. Paramount Foods.
Inc. v. Burkhardt , 695 S .W .2d 418 (Ky. 1985) ; Caudill v. Maloney's Discount Stores, 560
S.W.2d 15, 16 (Ky. 1977) . Having failed to convince the AU that his post-traumatic
stress disorder is a direct result of a physical injury, the claimant's burden on appeal is
to show that the evidence in his favor was so overwhelming that the finding to the
contrary was unreasonable. Special Fund v. Francis , 708 S .W .2d 641, 643 (Ky. 1986).
In West, su ra, there was evidence that the origin of the psychiatric harm was a
physical encounter with a suspect . In the present case, however, the ALJ chose to rely
on the medical evidence indicating that the cause of the claimant's psychiatric harm was
an after-the-fact exposure to scenes of physical trauma to others and that any physically
traumatic events were insignificant . As explained in West, supra, KRS 342 .0011(1)
requires a psychiatric harm to be a direct result of a physically traumatic event . Nothing
in the statute implies a legislative intent that the physical trauma causing a harmful
change be to someone other than the claimant . Therefore, we are not convinced that
physical trauma to another constitutes a physically traumatic event to the claimant for
the purposes of KRS 342 .0011(1) .
Contrary to the claimant's assertion, the evidence did not compel a finding that
his psychiatric condition was a direct result of a physically traumatic event or series of
events. He reported no serious physical trauma to any medical expert . Only Dr. Allen
testified that scuffles and physical altercations led the claimant to perceive a potential
threat to his life and contributed to causing his condition . He prepared the supplemental
report addressing those events at the claimant's request, one year after their last visit.
All of
the other experts viewed the claimant's exposure to crime scenes as being the
cause of his condition . We acknowledge that the result is harsh in this case, but it was
the ALJ's prerogative to rely on the other experts .
The decision of the Court of Appeals is affirmed .
Cooper, Johnstone, Roach, and Wintersheimer, JJ ., concur. Scott, J., dissents
by separate opinion in which Lambert, C.J., and Graves, J ., join .
COUNSEL FOR APPELLANT :
David B. Allen
2333 Alexandria Drive
Lexington, KY 40504
COUNSEL FOR APPELLEE:
Sherri P. Brown
Ferreri & Fogle
300 East Main Street, Suite 400
Lexington, KY 40507
Robert L. Swisher
Geralds, Jones, Sherrow, Schrader & Rice
259 West Short Street
Lexington, KY 40507
RENDERED : DECEMBER 22, 2005
TO BE PUBLISHED
,*uyrPmr (~ourf of ~irufurhV
2003-SC-0974-WC
CHARLES A . KUBAJAK, JR .
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-2293-WC
WORKERS' COMPENSATION BOARD NO . 02-0087
LEXINGTON-FAYETTE URBAN COUNTY
GOVERNMENT; HON. ROGER D. RIGGS,
ADMINISTRATIVE LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
DISSENTING OPINION BY JUSTICE SCOTT
It is undisputed that claimant suffers from post-traumatic stress disorder, that the
condition is disabling, and that it is work-related . All three psychiatrists (Granacher,
Ludwig and Ruth) as well as the psychologist, Allen, were in agreement on all points.
Moreover, the Administrative Law Judge (ALJ) determined that the condition was
due to working gruesome crime scenes . In his opinion, however, it was not an "injury"
as defined by KRS 342.0011(1) and therefore not compensable . See Lexin tom n-Fayette
Urban County Government v. West, 52 S.W.3d 564 (Ky. 2001) .
Having determined the evidence did not compel a finding that the condition
resulted from a "physically traumatic event," as explained in West, the Workers'
Compensation Board (Board), the Court of Appeals and this Court, have affirmed . For
reasons set out, I respectfully dissent.
Claimant began working as a police officer for the Lexington-Fayette Urban
County Government in October, 1986. His claim alleged that as of January 19, 2001,
he suffered from post-traumatic stress disorder, panic attacks, and other psychological
or psychiatric conditions that were attributable to a gradual, or cumulative, injury
resulting from the violent nature of his job.
After completing the police academy, he began working on patrol . His duties
included responding to accidents, taking burglary reports, and attempting to deter crime .
He stated that he was involved in a number of fights over the years . On two occasions
while he was a patrolman, he experienced life-threatening events, and these occasions
included physical fights involving the claimant and the suspects being arrested . One
occasion involved a domestic disturbance where the husband was physically beating
his wife and when claimant tried to stop him, the angry husband pulled a knife on
claimant and threatened to kill him . Claimant persuaded the suspect to put his knife
away but they then fought physically and the suspect slammed claimant up against a
wall . Claimant suffered scratches, bruises and soreness. On another occasion,
claimant made a night traffic stop and asked the driver to produce his license and
registration . The driver reached down under the seat and claimant thought he might be
reaching for a weapon . Claimant drew his weapon and ordered him out of the car, but
as he came out, he grabbed the barrel of claimant's weapon . Claimant ordered him to
let go and he did . Claimant put his gun in his holster but then the two fought and rolled
around on the street. Later several other occupants of the car started getting out to
assist the driver. Claimant drew his weapon again and threatened to shoot them if they
did not get back in the car. A back-up officer soon arrived and helped claimant regain
control . Again, claimant suffered minor injuries, including scratches and bruises .
On May 28, 1990, the claimant transferred to the Crime Scene Investigation
Unit (CSI), where he was responsible for attending crime scenes, collecting,
documenting, and preserving evidence therefrom . The work involved daily exposure to
the details of extreme and graphic violence . As acknowledged by the Board, the
claimant, "on almost a daily basis, would be called upon to observe scenes of incredible
violence ."
In the early to mid-1990s, the claimant began to experience headaches and
stomach discomfort . His symptoms worsened appreciably after working a scene where
two of his fellow officers were shot . On occasion, he experienced chest pains severe
enough that he went to the hospital, thinking he was having a heart attack .
At the time,
he attributed his symptoms to "burn out" from the long hours and irregular sleep
patterns that resulted . Once while seeing Dr. Bailey, the doctor discussed the
possibility that the origin of the symptoms might be psychological, but claimant asked
that nothing be put in his records that would jeopardize his employment.
At some point, he began to have nightmares and thoughts he called "hauntings,"
(flashbacks) in which he relived some of the life-threatening arrests he'd been involved
in, as well as the crime scenes he'd worked . He also realized that he had over-reacted
to certain situations, explaining how . . . on one traffic stop, he'd drawn his pistol on an
elderly lady when she began to reach under her seat - he was so afraid. Convinced he
needed a job with regular hours, he requested another transfer. On August 5, 1996, he
was transferred to the Auto Theft Unit. Yet, the flashbacks and nightmares became
more intense and more frequent . He began to withdraw from contact with other people .
In July, 2000 he was transferred to the Robbery Unit. This involved everything
from purse snatchings to bank robberies, but still exposure to violent crime scenes . He
informed his superiors at the time that he was experiencing stress but was not specific
about the cause or symptoms . Then, in October, 2000, he responded to the scene of a
robbery where a body was found . As he approached the home - he saw the medical
team - he went into a panic and broke down. Shortly thereafter, he told the Chief that
his job was too stressful and was endangering his health .
On October 30, 2000, claimant transferred to Community Service, a light-duty
assignment . He explained that thirty days of light duty were required before requesting
disability retirement. During this period, he contemplated suicide and recognized that
he needed professional help . He sought treatment with Dr. Allen, who diagnosed posttraumatic stress disorder and informed him of the diagnosis on December 11, 2000.
He was placed on medical leave on January 19, 2001, and has not worked since.
He applied for disability retirement shortly thereafter. It was approved following
evaluations by Drs. Ruth and Ludwig, both of whom provided evidence in this claim .
Initially he testified, as he understood it, that he suffered no "physical" injuries as
a police officer . Later he acknowledged he had been involved in dangerous scuffles on
at least two occasions . He did sustain "bruises and abrasions" in the incidents, but
sought no medical treatment .
Dr. Ludwig, a psychiatrist, diagnosed major depressive disorder and posttraumatic stress disorder. He attributed the conditions entirely to the claimant's
exposure to scenes of violence and death in his work. In his opinion, they were
permanently and totally disabling with regard to the claimant's ability to work as a police
officer .
Dr. Ruth, a psychiatrist, examined the claimant and concluded that he could not
return to work as a police officer . In his opinion, the claimant's post-traumatic stress
disorder was caused by repeated exposure to signs of violence while investigating
crime scenes. He assigned a 15% AMA impairment under the last edition that provided
percentage ratings .
Dr. Allen, the treating clinical psychologist, took a history consistent with that to
which the claimant testified . He diagnosed post-traumatic stress disorder due to the
cumulative stress of the claimant's work. He thought that, with treatment, the claimant
would be able to perform work other than as a police officer.
In a supplemental report, Dr. Allen stated the claimant reported several
occasions in which he was injured while in the line of duty and that some of those
altercations reappeared consistently in his nightmares . In one particular event, he
found it necessary to pull his gun on a knife-wielding assailant following a fight in which
he was injured . In Dr. Allen's opinion, repeated physical harm or threat of physical harm
had increased the claimant's general level of arousal and anxiety.
He concluded,
therefore, that the physical nature of the claimant's work and "consequent or potential
injuries" were "an important part of the core experiences which led to his Post-Traumatic
Stress Disorder ."
When deposed by the employer, Dr. Allen was questioned about whether any
physical events in which the claimant was involved had evoked the intense fear,
helplessness, or horror that the DSM-IV required for a diagnosis of post-traumatic stress
disorder . He stated that during physical altercations, such as being confronted by a
knife-wielding husband during a domestic disturbance, the thought that one might be
injured significantly is going to occur and did occur to the claimant . He stated that such
events happened "within the context of a much larger picture of very traumatic, horrific
events and situations that he has dealt with." He characterized any attempt to attribute
the claimant's condition to any particular event as splitting hairs.
When questioned further about any physical injuries claimant may have reported,
Dr. Allen noted that it was not his experience for an individual to report a medical
problem such as a cut that required stitches as being a significant injury unless it
required ongoing medical treatment .
Dr. Allen explained that two classes of situations
were involved, (1) situations in which the claimant perceived the potential of personal
harm and (2) those in which he witnessed extraordinarily horrific crime scenes. He
attributed the claimant's condition to the cumulative effects of all of his experiences as a
police officer, particularly to the CSI investigations . He viewed claimant's investigation
of the 1996 shooting of two of his fellow officers as being significant in precipitating his
symptoms .
Dr. Granacher examined claimant and performed psychological testing. He
reported that claimant sustained a 20% whole-body psychiatric impairment due to posttraumatic stress disorder . He attributed the condition to the cumulative emotional stress
of claimant's work, noting that the condition is common in police and fire personnel.
He thought that claimant could be productive and successful in a different type of work.
In Dr. Granacher's opinion, claimant's post-traumatic stress disorder was due to
"psychological events" and was in no way a direct result of a "physical injury," as he
interpreted it .
More illuminating to this discussion, Dr. Granacher also testified that people
suffering from PTSD will have nightmares and flashbacks of the events that caused
the disorder. This is entirely consistent with claimant's nightmares and flashbacks
(hauntings), where he relives the gruesome crime scenes he's worked, as well as the
life-threatening events he personally experienced as an officer.
After summarizing the evidence, the AU noted that the case turned on whether
claimant's psychological, psychiatric, or stress-related condition was a direct result of a
physical injury (to the claimant) . KRS 342 .0011(1) . Dr. Allen, in his view, related the
condition to a physically traumatic event . Relying instead on testimony from Drs. Ruth,
Ludwig, and Granacher, the ALJ determined that claimant's post-traumatic stress
disorder and resulting impairment were not a direct result of a "physical injury ."
For the purposes of Chapter 342, the word "injury" is a term of art. Before
December 12, 1996, KRS 342.0011(1) defined "injury' as being a harmful change in the
human organism. Since December 12, 1996, KRS 342 .0011(1) has defined an "injury"
as being a "work-related traumatic" event, or series of such events, that cause a harmful
change in the human organism . In the same view, the statute requires that a
psychological, psychiatric, or stress-related change in the human organism must be "a
direct result of a physical injury."
Noting that KRS 342.0011(1) now defines an "injury" as being a traumatic event,
or series of events, rather than a harmful change, this court determined in Lexington-,
Fayette Urban County Government v. West, 52 S .W .3d 564 (Ky. 2001), that a
psychological, psychiatric, or stress-related change in the human organism must directly
result from a "physically traumatic event" or series of events in order to be viewed as
being an injury. However, it was unnecessary for every traumatic event in a series
causing psychological or psychiatric harm to involve physical rather than emotional
trauma . Id . at 567.
In West, this court addressed the facts that were present and to be considered
on remand, stating that if the first in a series of traumatic events involves physical
trauma and if the event is a direct and proximate cause of the worker's psychological
harm, the worker has sustained an "injury" under KRS 342 .0011(1) . Id . Like Officer
West, claimant sustained both physical and emotional trauma, but in his case the
emotional trauma was due to a frequent exposure to scenes of graphic physical
violence . He supported his claim with evidence conducive to a belief that his PTSD was
caused by a mixture of "physically traumatic events" to himself and others .
1n this case, the medical evidence is unanimous ; the claimant suffers from PTSD.
With this in mind, it is important to point out that one of the DSM-IV diagnostic criteria
for PTSD is a requirement that the person experienced or witnessed or was confronted
with an event or events that involved actual or threatened death or serious injury, or a
threat to the physical integrity of self or others .'
It is notable that included among
those who are particularly susceptible to PTSD, due to the frequency of their exposure
to such events, are "first responders," such as soldiers, police officers (as in the case at
bar and West), firefighters and rescuers . One need only recall the numerous veterans
with PTSD that have returned physically unscathed from war, yet mentally or
emotionally damaged by the shock, or gruesomeness, of what physically happened to
others .
A thorough understanding of the circumstances which led the legislature to revise
the definition of injury in KRS 342 .0011(1) in 1994 and to impose even more sweeping
amendments to the Kentucky Workers' Compensation Act in 1996 includes the
knowledge that it was largely in response to what many considered a lack of "objectivity"
in who was truly injured and deserving of compensation benefits by reason of disability
produced by work. Thus, the legislature enacted more precise guides and criteria as a
requisite for compensability. This included the mandatory use of the AMA's Guides to
the Evaluation of Permanent Impairment pursuant to KRS 342 .730 and revision of
certain definitions in KRS 342.0011 . KRS 342 .0011(1), (11), and (33)-(36) . However,
none of the amendments signaled an intention on the part of the General Assembly to
' American Psychiatric Association Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition.
8
retreat from the well-established concept that workers' compensation statutes are to be
interpreted in a manner consistent with their munificent and beneficent purpose . Jewish
Hospital v. Ray, 131 S .W. 3d 760 (Ky. App. 2004) ; Dick v . International Harvester Co.,
310 S .W. 2d 514, 515 (Ky . 1958) ; see also KRS 446.080.
The operative language of KRS 342.0011(1) which was seen as an impediment
to compensability by the Administrative Law Judge in the case at bar is that which
states that . . . "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 .
Certainly, if the "physical injury" referred to must be an injury to the disabled worker
seeking compensation, then it was within the ALJ's authority to rely on Drs . Ruth,
Ludwig, and Granacher, rather than Dr. Allen .
However, given the DSM-IV criteria
referred to above, which includes threats and injuries to others, the definition of injury
should be construed as meaning that the "physical injury" or "physically traumatic
event," or events, which must constitute a nexus between the psychological injury and
physical injury, may include events involving physical trauma to others . Such an
interpretation promotes the munificent and beneficent purpose of the Act while
maintaining objectivity . It is consistent with West and medical science, and more
importantly, emphasizes the significance of the "physically traumatic event," or events,
which we held in West as the meaning of "physical injury" under KRS 342 .0011(1) post
December 12, 1996 .
Lambert, C.J ., and Graves, J ., join this dissent .
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