K. Lance Lucas, Florence, KY, for appellant.
Daniel F. Dotson Whitesburg, KY, for appellee Benjamin McCray.
Before COMBS, NICKELL and STUMBO, Judges.
The Kentucky State Police (" KSP" ) appeals from an Opinion of the Workers' Compensation Board (" the Board" ) which vacated and remanded an Opinion and Order of the Hon. Grant S. Roark, Administrative Law Judge (" ALJ" ). ALJ Roark determined that Trooper Benjamin McCray's claim for benefits arising from shooting-related Post-Traumatic Stress Disorder (" PTSD" ) required proof that the PTSD resulted from a physical injury, and that the record did not support such a finding. In vacating the ALJ's Opinion and Order, the Board concluded that the statutory definition of injury does not require physical contact, that a " work-related traumatic event" was sufficient to support a claim for benefits arising from PTSD, and that on remand the ALJ was required to re-examine whether McCray was entitled to benefits. The KSP now argues that Kubajak v. Lexington-Fayette Urban County Government, 180 S.W.3d 454 (Ky.2005), requires proof of a physically traumatic event in order to sustain a claim for benefits arising from PTSD, and that the Board erred in failing to so find. We conclude that Kubajak holds that PTSD is compensable only if it results from a physically traumatic event to the Petitioner. Since ALJ Roark found that McCray was not physically injured in the shooting, and as this finding is supported by substantial evidence of record, we reverse the Board's Opinion directing the ALJ to re-examine McCray's claim for benefits.
On April 11, 2012, McCray filed a Form 101 alleging that on September 25, 2009, and while in the employ of the KSP as a trooper, he sustained the injury of " psychological trauma, severe PTSD." McCray described the injury as having occurred when he " shot and killed a man pointing a gun at me and threatening me."
On May 25, 2012, KSP filed a motion to bifurcate the matter for consideration of whether the statute of limitations barred the claim and whether McCray sustained a compensable injury under KRS Chapter
342. On September 4, 2012, the Benefits Review Conference (" BRC" ) rendered an Order noting that " injury as defined by the Act" was the contested issue.
McCray testified by way of deposition on June 5, 2012, and in person at a September 18, 2012 hearing. He described the incident when he was called to a domestic disturbance on that date. When he arrived at the scene, he was confronted by a man who he believed was armed with a gun, and was forced to shoot the man in order to protect his own life. After shooting the suspect, and because he did not know if other individuals at the scene were armed, McCray retrieved a rifle from his KSP vehicle and waited in a wooded area until additional troopers arrived. It was later determined that the suspect was armed with a BB gun. In response to the question of whether McCray was physically injured in the incident, he responded " I don't think so."
McCray stated that shortly after the incident, he began experiencing paranoia, lack of sleep, as well as episodes of rage and anger. By April, 2010, McCray stopped working because his rage and anger " got to the point where I was going to end up hurting somebody that didn't need to be hurt." At the September 18, 2012 hearing, McCray confirmed that he did not sustain a physical injury as a result of the September 25, 2009 incident, and was not hit, bruised, cut or scraped, and did not fall down or bump into anything.
As to McCray's psychological issue, evidence was adduced from the records of Dr. Gary Patton that McCray suffered from major depression, panic disorder, severe occupational issues and PTSD. Dr. Patton opined that McCray was " totally and permanently disabled from any form of work due to the severity of his symptoms." Other medical evidence, including the reports of psychologist Michele Amburgey and Dr. James Daum confirmed the diagnosis of PTSD and psychological unfitness to perform his duties as a trooper for the KSP.
The matter proceeded before the ALJ, who rendered an Opinion and Order on November 19, 2012. The ALJ cited Lexington-Fayette Urban County Government v. West, 52 S.W.3d 564 (Ky.2001), for the proposition that the 1996 revision of KRS Chapter 342 defined a compensable " physical injury" as an event that involves physical trauma and proximately causes a harmful change in the human organism that is evidenced by objective medical findings. In particular, the ALJ cited that portion of West holding that " in instances where the harmful change is psychological, psychiatric, or stress-related, it must directly result from the physically traumatic event." West, 52 S.W.3d at ...