Richard E. Jacobs Group, Inc. v. White

*25OPINION OF THE COURT

KRS 342.0011(1) requires a mental harm to directly result from a physically traumatic event. Lexington-Fayette Urban County Government v. West, 52 S.W.3d 564, 566-67 (Ky.2001). An Administrative Law Judge (ALJ) determined that the claimant failed to prove a physical injury or trauma and dismissed his application for benefits due to post-traumatic stress disorder. The Workers’ Compensation Board (Board) affirmed, but a divided Court of Appeals reversed. A majority found that contact with another’s blood and body fluids during a lifesaving attempt constituted physical trauma and remanded the claim for further consideration. We affirm, but we do so because the physical exertion of performing CPR and first aid on an individual with multiple gunshot wounds is a physically traumatic event.

Officer White was employed by the Lexington-Fayette Urban County Government as a full-time officer in the Police Department. He testified that he was on call 24 hours per day, 7 days per week. With Department approval, he was employed concurrently by the Richard E. Jacobs Group, Inc. to work as a security guard at Fayette Mall. There was evidence that off-duty police officers are required to have their sidearms accessible and respond to high priority situations 24 hours per day.

On January 5, 2001, Officer White reported for work at Fayette Mall. He was informed that there was concern about a band of shoplifters and instructed to work in plainclothes in an effort to apprehend them. About one hour into the shift, he received a police dispatch regarding a male subject at the mall who was dressed in a security guard uniform, armed with a night stick, and threatening suicide. Alerted to the subject’s location, Officer White approached an individual matching the description, who then displayed a revolver. Officer White continued to approach, drew his own gun, and displayed his badge. After some initial inquiries, the individual drew his gun, ignored several commands to drop it, raised it, and pointed it at Officer White. Officer White fired four shots. Although hit by three of them, the individual continued moving toward the officer, who fired four more rounds before the subject fell to the ground. Officer White testified that he performed CPR and first aid after the subject fell to the ground. He also stated that his skin came in contact with the subject’s blood and body fluids while attempting to save his life; that he was not permitted to wash for an extended period of time; and that he feared he might have contracted a communicable disease. The subject died at the scene, and suicide notes were found in his vehicle.

After the incident, Officer White was transported to the Department where he was interrogated and placed on administrative leave during an internal investigation. Officer White received blood tests to determine if he had contracted a disease from the blood and body fluids. He also sought treatment from a psychologist for nightmares, flashbacks, and paranoia due to a perception that he might be indicted for the incident and to a fear of having contracted a disease such as AIDS or tuberculosis. His symptoms worsened after he returned to work, and he eventually applied for and received disability retirement. On March 14, 2001, the commonwealth’s attorney determined that the use of deadly force in self-defense was justified under the circumstances. The blood tests were negative.

Five board-certified psychiatrists testified. All diagnosed post-traumatic stress disorder and stated that Officer White should not return to police work. All but *26one agreed that the condition caused permanent impairment. The ALJ noted, however, that although Officer White characterized the event in question as an assault and indicated that an Assaulted Officer Report was completed, the official Department record did not contain such a report. Nor did it reflect any physical trauma or harm. Noting the absence of physical trauma or harm, the ALJ determined that the mental condition resulted from the stress and mental impact of the life-threatening situation and dismissed the claim. The Board affirmed.

The employers maintain that the Court of Appeals misapplied West, supra, and that KRS 342.0011(1) requires a mental injury to directly result from a physical injury, not simply from a physically traumatic event. Equating a physical injury with physical harm, they attribute any misunderstanding to what they assert is the West court’s substitution of the phrase “physically traumatic event” for “physical injury.” Id. at 566-67. They argue that, unlike Officer West, Officer White sustained no physical harm such as scratches, abrasions, and soreness and that no evidence indicated that his contact with the deceased’s blood and body fluids caused physical harm. Therefore, he did not sustain a physical injury. Another argument is that Officer White failed to prove a physically traumatic event, that substantial evidence supported the ALJ’s finding, and that the evidence did not compel a favorable finding.

The claimant maintains that Wesi, supra, explained the reason for interpreting KRS 342.0011(1) as requiring a mental condition to directly result from a physically traumatic event and indicated that a physical harm was unnecessary. Id. He asserts that the work-related events of January 5, 2001, clearly involved significant physical contact and directly caused his mental condition.

West, supra, concerned a police officer who gradually sustained a mental condition (post-traumatic stress disorder) due to a series of traumatic events. The first occurred in 1989, when she was assaulted by a knife-wielding suspect. The incident was later described as being a “full-fledged fight” in which the officer and suspect were scuffling and rolling on the ground. She sustained minor scratches, abrasions, and muscle soreness. Nothing indicated that the subsequent events involved physical trauma. Among the matters at issue was whether West’s mental condition was an “injury” under the 1996 version of KRS 342.0011(1).

Since April 4, 1994, KRS 342.0011(1) has required a psychological, psychiatric, or stress-related change in the human organism to directly result from a physical injury. Until December 12, 1996, KRS 342.0011(1) defined an injury as being “any work-related harmful change in the human organism .... ” In contrast, under the 1996 version of the statute, an injury is a “traumatic event” that causes a harmful change in the human organism. It states 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” ... shall not include a psychological, psychiatric, or stress-related change in the human organism unless it is a direct result of a physical injury.

Noting that the amended definition of “injury” refers to a traumatic event rather than a harmful change, the court stated:

*27We conclude, therefore, that for 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-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 “full-fledged 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.

Id. The physically traumatic event caused physical harm (minor scratches, abrasions, and soreness) as well as mental harm (post-traumatic stress syndrome). Like the testimony describing the incident, the physical harm was evidence that a physically traumatic event occurred. Contrary to the employers’ arguments, the standard was not that Officer West sustained physical harm but that she was involved in a physically traumatic event. Although the traumatic event in West was a physical altercation with a suspect, physical trauma need not involve an impact from an outside force; it may involve physical exertion. See, Ryan’s Family Steakhouse v. Thomasson, 82 S.W.3d 889 (Ky.2002).

Kubajak v. Lexington-Fayette Urban County Government, 180 S.W.3d 454 (Ky.2005), concerned another police officer who sought compensation for post-traumatic stress syndrome. Only a supplemental report from his treating psychologist indicated that the condition was partly due to scuffles and physical altercations that led him to perceive a potential threat to his life. The psychologist testified subsequently that it was prepared more than a year after the officer’s last visit, explaining that he stopped by the office, talked briefly of the events, and requested a clarification to indicate they had discussed such events. All of the other medical evidence attributed the cause of the condition to the stress or emotional trauma of investigating the scenes of crimes involving extreme and graphic violence to others. Persuaded by the latter evidence, the ALJ found no “injury.” This court relied on West, supra, and affirmed. We noted that “injury” is a term of art for the purpose of KRS 32.0011(1) and stated that nothing in the statute implies a legislative intent that the physical trauma causing a mental harm could be to someone other than the claimant. Id. at 459.

It is obvious that the incident on January 5, 2001, was life-threatening and emotionally traumatic to Officer White. The issue under KRS 342.0011(1) is whether it was physically traumatic as well. There is no requirement that a physically traumatic event must cause physical harm as well as the mental harm for which compensation is sought. West, supra. It may involve a physical exertion rather than an impact from an outside force. See Ryan’s Family Steakhouse v. Thomasson, supra. Performing CPR and first aid on an individual with multiple gunshot wounds clearly requires physical exertion. Therefore, it constitutes a physically traumatic event for the purpose of KRS 342.0011(1), and any mental harm that directly results is compensable.

Officer White testified that he performed CPR and first aid on the deceased. He came in contact with blood and body fluids while doing so, and there was evi*28dence linking his mental condition to that contact. Under the circumstances, it is unnecessary to consider whether physical contact with another’s blood and body fluids, by itself, would constitute a traumatic event. This claim must be remanded for ALJ to consider the evidence, determine whether it indicates that performing CPR and first aid on the deceased directly caused White’s mental condition, and proceed accordingly.

The decision of the Court of Appeals is affirmed

LAMBERT, C.J.; and GRAVES, SCOTT, and WINTERSHEIMER, JJ„ concur. ROACH, J., dissents by separate opinion in which COOPER and JOHNSTONE, JJ„ join.