CHRIS WHITE v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; RICHARD E. JACOBS GROUP, INC.; JACOBS GROUP MANAGEMENT CO., INC.; HONORABLE DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
May 27, 2005; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001457-WC
CHRIS WHITE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-00075
v.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT;
RICHARD E. JACOBS GROUP, INC.;
JACOBS GROUP MANAGEMENT CO., INC.;
HONORABLE DONNA H. TERRY, ADMINISTRATIVE
LAW JUDGE; AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND MINTON, JUDGES.
JOHNSON, JUDGE:
Chris White has petitioned for review of an
opinion of the Workers’ Compensation Board entered on June 23,
2004, which affirmed the administrative law judge’s dismissal of
his claim for benefits as the result of a psychiatric condition
that arose out of and in the course of his employment as a
police officer with Lexington-Fayette Urban County Government
(LFUCG) and as a security guard with Richard E. Jacobs Group,
Inc.
Having concluded that the Board misconstrued controlling
statutes and precedent concerning the physical injury that White
suffered as the result of a traumatic event, we reverse and
remand.
On January 5, 2001, White, who was 35 years old, was
employed full-time as a detective by the LFUCG Police Department
and part-time as a security guard at Fayette Mall, an indoor
commercial shopping center.1
After White completed his shift as
a police officer for LFUCG, he reported to his security guard
job at the Fayette Mall.
Approximately one hour into that job
shift, White received a call from a LFUCG police dispatcher
regarding a male subject at the mall.
White was advised that
the subject was dressed in a security guard uniform and carrying
a night stick.
The subject had reportedly threatened to commit
suicide.
Subsequently, White was told by another mall security
guard that the subject was near a bus stop in front of the mall.
As White approached the subject, he noticed a revolver, so he
drew his gun, displayed his LFUCG police badge, and identified
himself as a police officer.
subject drew his gun.
After some conversation, the
White commanded the subject to drop the
gun, but instead the subject raised the gun and pointed it at
1
Fayette Mall was developed by the Richard E. Jacobs Group, Inc. and managed
by Jacobs Group Management Company, Inc.
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White.
White initially fired four shots, hitting the subject
three times.
When the subject continued to advance toward
White, he fired four more times before the subject fell to the
ground.
White then administered first aid, including CPR, to
the subject.
A paramedic arrived and assisted White, but the
subject died as a result of the gunshot wounds.
Suicide notes
were later discovered in the subject’s vehicle.
Following the shooting incident, White was transported
to the police department, interrogated, and placed on
administrative leave during an internal investigation.
White
did not report, or seek treatment for, any physical injury as a
result of this incident.
For some unexplained reason, the
subject’s blood was never tested, and White was forced to
undergo repeated blood tests to determine if he had contracted
any diseases through his contact with bodily fluids of the
deceased.
White testified that during the period of
administrative leave and internal investigation, he began to
experience stress; so he consulted psychologist Dr. Todd
Vandenburg.
White experienced nightmares, flashbacks, and
paranoia regarding a potential indictment for the shooting
incident and the uncertainty of having contracted diseases such
as AIDS and tuberculosis from the deceased.
After White
returned to work, for both the police department and the mall in
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April 2001,2 he began to lose concentration, became more
emotional, and developed road rage.
He first took sick leave
and then received disability retirement.
On January 6, 2003, White filed an application for
resolution of injury claim with the Department of Workers’
Claims.
Medical evidence in support of his disability claim
included the testimony of five board certified psychiatrists.
All of the doctors testified that White suffered from posttraumatic stress disorder (PTSD) and that he should not return
to work as a police officer.
In an opinion and order dated January 29, 2004,
dismissing White’s claim, the ALJ concluded that “Officer White
clearly has developed a significant psychiatric condition
as the result of the life-threatening situation on January 5,
2001. . . .
However, KRS3 342.0011(1) does not provide workers’
compensation benefits for the psychiatric effects in the absence
of a physical injury.”
On June 23, 2004, the Board affirmed,
but noted that the law created a “hardship.”
The Board stated
that “under the facts in this claim, White’s contact with the
bodily fluids of another, no matter how offensive, does not
constitute a physically traumatic event.”
review followed.
2
He was promoted to police sergeant in April 2001.
3
Kentucky Revised Statutes.
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This petition for
Our function in providing further review of a workers’
compensation claim is to correct the Board only when it “has
overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to
cause gross injustice.”4
Since the facts related to the legal
issue on appeal are not in dispute, our review is limited to
determining whether the Board overlooked or misconstrued
controlling statutes or precedent.
KRS 342.0011(1) provides as follows:
“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].
It has been noted by our Supreme Court that as a result of the
amendments to this statute in 1994 and 1996, “the term ‘injury’
now refers to the traumatic event or series of such events that
4
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
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causes a harmful change rather than to the harmful change,
itself.
Under the amended definition, a ‘physical injury’ is an
event that involves physical trauma, without regard to the type
of harmful change that results.”5
Prior to the 1994 amendment of KRS 342.0011(1), a
“mental-mental” recovery was allowed; i.e. a psychological
injury was compensable even if there was no related physical
injury.
As stated in West, supra:
In 1989, KRS 342.0011(1) defined a
compensable injury as being “any workrelated harmful change in the human
organism, arising out of and in the course
of employment. . . .” 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[.]”
. . .
[F]or the purposes of the 1996 version of
KRS 342.0011(1), 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-
5
McCowan v. Matsushita Appliance Co., 95 S.W.3d 30, 32 (Ky. 2002) (citing
Lexington-Fayette Urban County Government v. West, 52 S.W.3d 564, 566 (Ky.
2001)).
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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 “fullfledged 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.6
In West, a police officer who had been involved in an
“incident in which she was physically assaulted by a knifewielding suspect that she was attempting to apprehend[,]”7 filed
a claim for workers’ compensation disability benefits based upon
the PTSD she had developed.
The ALJ dismissed West’s claim, but
the Board remanded and this Court affirmed.
The Supreme Court
also affirmed and noted that even though West’s only physical
injuries “consisted of scratches, abrasions, and soreness,” she
had suffered a physical injury from the “incident” with the
suspect because the event involved physical trauma which
proximately caused a harmful change in the human organism that
was evidenced by objective medical findings of a psychological
condition.8
Likewise, in the case before us, the traumatic event
experienced by White involved relatively brief physical contact
with a suspect, but the nature of the physical contact was
6
West, 52 S.W.2d at 566-67.
7
Id. at 564-65.
8
Id. at 565.
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extremely physical and intimate.
Following the terrifying fatal
encounter where White was compelled to fire eight shots at the
subject hitting him numerous times at close range before he
finally fell, White undertook the physical task of personally
administering CPR and first aid, becoming mired in the man’s
blood and bodily fluids.
This event most assuredly involved
physical trauma.
In assisting the dying man, White did not have the
opportunity to protect himself by using a plastic gown or
gloves.
He took immediate action in an attempt to save the
man’s life, exposing himself fully to the noxious effects of the
man’s blood and mucous.
Later, White understandably became
concerned about the significant health risks of HIV and other
serious infections as a result of being exposed to the man’s
bodily fluids.
Thus, we hold that like the event in West, here White
had a brief but seriously intimate physical encounter with a
criminal suspect.
While White did not suffer scratches or
abrasions, he endured the physical impact of being coated with
bodily fluids with a threat of much more serious health
consequences than scratches and abrasions.
We conclude that an
event of such tangible and significant physical contact
constitutes a physical trauma.
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Accordingly, we reverse the Board’s opinion and remand
this matter for further proceedings consistent with this
Opinion.
COMBS, CHIEF JUDGE, CONCURS AND FILES SEPARATE
OPINION.
MINTON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
COMBS, CHIEF JUDGE, CONCURRING:
I heartily concur
with the majority opinion and would in no way characterize this
injury as “mental-mental” so as to bar recovery under Kentucky
law.
Medical research has continued to emphasize the inter-
connectedness of body, mind, and spirit.
The physical injury that occurred in this case far
exceeded a “mere touching.”
Officer White faced a violent
physical confrontation resulting in the necessity of his most
immediate and intimate contact with the bodily fluids of the
victim.
We can truly take judicial notice of the physical peril
to which he subjected himself by treating the victim without the
time or opportunity to sheathe himself with protective covering.
The hazard of such exposure to HIV and other possible diseases
is readily apparent.
The psychological trauma directly flowing
from the highly physical encounter is equally obvious.
Consequently, I agree that the post-traumatic stress
disorder (PTSD) suffered by Officer White was inescapably
attributable to his physical encounter with this victim – an
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encounter that had serious physical ramifications as evidenced
by the many sessions of blood-testing to ascertain whether he
had yet contracted numerous fearsome diseases.
As his mental
problems manifested themselves over the course of those blood
tests, their linkage to a physical origin became clear.
His
mental infirmity was a “direct result of a physical injury”
under the literal wording and intent of KRS 342.0011(1).
MINTON, JUDGE, DISSENTING:
from the majority opinion.
I respectfully dissent
The facts indicate that Officer
White’s post-traumatic stress disorder (PTSD) was caused by
stress and the psychiatric impact of a life-threatening
situation rather than from a physical injury.
Kentucky does not
allow for “mental-mental” recovery without a related physical
injury; therefore, I believe the ALJ correctly held White was
without remedy under KRS 342.0011(1).
The crux of White’s argument is that the definition of
“physical injury” for purposes of workers’ compensation recovery
should be expanded to include a “mere touching.”
yet to be addressed by our courts.
have confronted the matter.
This issue has
However, other jurisdictions
In the case of Liberty Correctional
Institute v. Yon,9 the Florida Court of Appeals held that mere
9
671 So.2d 194 (Fla.App. 1996).
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touching was not sufficient to establish a physical injury for
purposes of entitlement to workers’ compensation benefits.
Likewise, in LaDay v. Catalyst Technology,10 a Louisiana court
held that a supervisor’s touching of his employee’s buttocks was
insufficient to establish a “physical injury” for purposes of
workers’ compensation recovery for alleged psychological harm.
And in W.W. Fowler Oil Co. v. Hamby,11 the Georgia Court of
Appeals held that the term “discernible physical occurrence,” as
used in reference to workers’ compensation benefits, “means a
physical injury or harm, not merely a touching that can be fixed
in time.’”12
As the majority notes, White argues that his situation
should be likened to that in West.
But unlike the victim in
West, White has no proof of physical injury other than contact
with the blood and mucus of another.
This contact is
insufficient to establish a “physical injury.”
Even though the
suspect’s bodily fluids physically touched White, there is no
evidence that physical trauma resulted from that touching.
I
agree with the Board that “the distinction between direct
exposure to possibly tainted blood as opposed to minor scrapes
and abrasions [as was the case in West] appears Draconian”;
10
818 So.2d 64 (La.App. 2001).
11
385 S.E.2d 106 (Ga.App. 1989).
12
Id. at 422 – 423.
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however, I also agree with the previously cited cases that
conclude a mere touchingsuch as White’s contact with the
suspect’s blood and mucusis insufficient to establish physical
injury.
There is no question that White’s situation is
sympathetic.
His experience was traumatic, and he acted
honorably and appropriately.
But without proof of physical
injury, our statutes do not provide for recovery solely on the
basis of White’s psychological trauma or his contact with the
suspect’s blood and mucus.
Therefore, I dissent from the
majority’s decision.
BRIEF FOR APPELLANT:
Donald R. Todd
Lexington, Kentucky
BRIEF FOR APPELLEE LEXINGTONFAYETTE URBAN COUNTY
GOVERNMENT:
Sherri P. Brown
Lexington, Kentucky
BRIEF FOR APPELLEES RICHARD E.
JACOBS GROUP, INC. AND JACOBS
GROUP MANAGEMENT CO., INC.:
Carroll M. Redford, III
J. Scott Benton
Lexington, Kentucky
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