IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER

CASE IN ANY COURT OF THIS STATE; HOWEVER,

UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED

DECISION IN THE FILED DOCUMENT AND A COPY OF THE

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE

ACTION.
Anurmt Courf of

2007-SC-00237-WC

RENDERED : FEBRUARY 21, 2008

NOT TO BE PUBLISHED

ON APPEAL FROM COURT OF APPEALS

V. 2006-CA-001781-WC

WORKERS' COMPENSATION NO. 05-00215

ULESS MILLS APPELLANT

CTA ACOUSTICS, INC. ;

HON. ANDREW F. MANNO,

ADMINISTRATIVE LAW JUDGE AND

WORKERS' COMPENSATION BOARD APPELLEES

MEMORANDUM OPINION OF THE. COURT

AFFIRMING

KRS 342.0011(1) defines an injury as being a work-related traumatic event that

is the proximate cause producing a harmful change in the human organism but

excludes a psychological, psychiatric, or stress-related change "unless it is a direct

result of a physical injury ."

An Administrative Law Judge (ALJ) determined that an explosion caused the

claimant to sustain a work-related hearing loss but not to sustain a work-related

psychological injury . The Workers' Compensation Board affirmed . The Court of

Appeals affirmed, and the claimant appeals. We affirm because we are not convinced

that the evidence compelled a favorable decision.

The claimant began working for the defendant-employer (CTA) in 1973. While
delivering paperwork in the course of his duties as a quality control inspector on

February 20, 2003 he heard an explosion, saw a large fireball, was struck on the right

side by wind from the explosion, and experienced an immediate hearing loss in his right

ear. No debris from the explosion struck him . Several co-workers were burned so

severely as to be unrecognizable, and a number of them died. The claimant filed two

applications for benefits. In one he alleged that the explosion caused him to sustain a

hearing loss. In the other he alleged that it caused a psychological injury .

Medical records indicated that the claimant's history of psychiatric problems

preceded the explosion. Records from his family physician, Dr. Baker, indicated that he

had taken Xanax since February 1990 . The claimant testified that he had seen a

psychiatrist in 1996, when his father was killed, and received a prescription for Zoloft.

Dr. Reddy had treated him since April 2002 and prescribed Inderal for chest pain as

well as Zoloft. In September 2002 the claimant requested Zoloft for anxiety and

depression. At the hearing, he testified that his primary symptom before the explosion

had been nervousness but that he was also tired and had difficulty sleeping, which he

attributed to working twelve-hour shifts, four days per week.

The claimant testified that he sought treatment for his hearing loss on the day of

the explosion and returned to work after three or four days. On October 28, 2003 he

began to experience chest and back pain at work and was taken to the hospital .

Physicians diagnosed a panic attack and referred him to Dr. Shahmalak, a psychiatrist.

The claimant did not work after October 28, 2003. He testified that his employer

decided to change his job from an hourly position to a salaried one and that he was

upset that the employer posted the job without asking him if he was interested. He
acknowledged taking Zoloft and Xanax before the explosion but stated that he began to

experience flashbacks and suicidal thoughts after it occurred . He continued to see a

therapist monthly, to see Dr. Shahmalak every three months, and to take Xanax,

Prozac, Wellbutrin, and a sleep aid . He maintained that the psychological injury

prevented him from working .

Dr. Shahmalak first saw the claimant on November 3, 2003. Taking a history of

the present illness, he noted that the claimant had been under much stress recently.

He had worked for his employer for 30 years, the past 11 in quality insurance, but now

his job was being advertised . His wife had heard that one of the administrators had

advised another worker to apply because she had a good chance of getting it . Also, a

co-worker in his department had died "on Friday" at age 54, which had added to his

stress and sadness. He felt depressed and had experienced suicidal thoughts . The

claimant stated that he had felt nervous and depressed since his father died and felt

very nervous, stressed out, and insecure about his job. Dr. Shahmalak received a past

medical history which indicated that the claimant took medication for heart problems,

that he had taken Xanax for the past 6-7 years, and that he "was in the explosion of

CTA several months ago and he said after this he has had diminished hearing in the

right ear." Dr. Shahmalak diagnosed severe depressive disorder, with the current

stressor being the employer's advertisement of his job and his fear of losing his job. He

recommended therapy sessions, which the claimant obtained . On November 3, 2003,

the claimant reported to the therapist that he became very anxious when he returned to

CTA to complete some paperwork and thought that he would never be able to return

there . The therapist thought that he seemed to be suffering from post-traumatic stress
disorder (PTSD) related to the explosion. On November 6, 2003 the claimant reported

that he was afraid that he would be forced to return to the production line and wished to

be placed on medical leave because he felt unable to return to work. Dr. Shahmalak

and the therapist signed the necessary paperwork. On December 3, 2003 the claimant

reported flashbacks from the explosion and indicated that he wanted to draw disability.

He was hospitalized for psychiatric reasons from February 3, 2004 through February 9,

2004, at which time Dr. Shahmalak diagnosed probable PTSD and major depressive

disorder. Treatment records continue through December 10, 2004.

Dr. Weitzel examined the claimant ,at his attorney's request in June 2004, took a

history, and reviewed medical records. He diagnosed PTSD, single episode, moderate

to severe. In his opinion, the claimant had a 30% functional impairment (5% preexisting active, 25% from the explosion). Dr. Weitzel noted that two tests were positive

for malingering, that both IQ and PDSQ test results were unreliable, and that the MMPI

results were skewed toward symptom exaggeration and unreliable. He stated,

however, that the claimant fit the criteria for PTSD even without the embellishment.

The claimant also submitted a report from Dr. Cooley, who examined him initially

in April 2005, took a history, and reviewed medical records. Dr. Cooley diagnosed

probable PTSD, probable major depressive disorder, and malingering but did not

determine the resulting impairment. He stated that if PTSD and/or major depression

caused impairment, it would result from the explosion . He suspected that the

conditions required treatment but was unable to say to what extent given the evidence

of malingering . He noted that he found more significant signs of malingering than Dr.

Weitzel reported . His examination was consistent with mild depression.
Dr. Ruth examined the claimant for the employer in June 2005, took a history

and, like the other experts, reviewed medical records that included those from Drs.

Baker, Reddy and Shahmalak. He diagnosed malingering and anxiety disorder. He

based the diagnosis of malingering on the fact that numerous tests Dr. Weitzel, Dr.

Cooley, and he performed documented the exaggeration of psychiatric symptoms as

well as insufficient effort on tests of cognitive functioning . Dr. Ruth stated that in each

psychiatric exam the claimant reported symptoms that were incompatible with a PTSD

diagnosis, noting specifically that repeated, identical dreams and an eagerness to

describe the traumatic event are not typical of the disorder. He also noted that the

claimant exhibited no signs of distress when describing the traumatic event. Dr. Ruth

stated that although the claimant attributed numerous medical complaints to the

explosion, including various respiratory difficulties, gastrointestinal complaints, and

peptic ulcer disease, medical records indicated that they existed previously. Likewise,

although he denied previous psychiatric treatment, medical records revealed prior

treatment with Xanax and antidepressants . Finally, although the claimant asserted that

he sought psychiatric treatment due to the explosion, his chief concern at the initial visit

with Dr. Shahmalak was worry that he would be reassigned to work for which he felt

physically incapable. Dr. Ruth assigned a 4% (class II, mild) impairment but attributed it

entirely to a pre-existing active disorder. He supported the latter statement with, among

other things, the fact that Dr. Reddy's notes before the explosion documented the

difficultly in diagnosing and treating the claimant's heart disease due to his anxiety.

In August 2005 Dr. Cooley re-examined the claimant and diagnosed PTSD,

major depressive disorder, symptom exaggeration, and personality disorder. He
assigned a 25% impairment (class III, moderate), which he attributed to the explosion.

He noted no pattern of malingering at that time.

Dr. Granacher examined the claimant for his attorney in October 2005, took a

history, and reviewed medical records. He diagnosed PTSD, due to the explosion, and

a panic disorder that had been present since 1990 . In his opinion, the work-induced

PTSD caused a 15% (class II) impairment.

In October 2005 Dr. Ruth reviewed Dr. Cooley's second report. He concluded

that it demonstrated that the claimant was again malingering and did not document

psychiatric symptoms or impairment that resulted from the explosion. He explained that

the symptoms the claimant described were not bona fide PTSD symptoms and that

testing revealed that he exaggerated symptoms.

In November 2005 Dr. Ruth reviewed Dr. Granacher's report and noted that it

failed to describe any psychiatric symptoms that arose from a physical injury sustained

in the explosion. He disagreed with Dr. Granacher's failure to characterize any portion

of the claimant's psychiatric impairment as being pre-existing and active . He also found

fault with Dr. Granacher's failure to address the numerous indicators of malingering, to

explain the spurious findings on an intelligence test, and to administer a personality test

other than the MMPI-2, and he disagreed with Dr. Granacher's conclusions .

Dr. Ruth reviewed a record from Appalachian Regional Hospital in Hazard

regarding the claimant's October 8, 2005 admission and prepared a report in November

2005 . He noted that the claimant had been charged with assault after striking his

brother-in-law and taken to jail . While in jail, he reported that he had experienced

suicidal thoughts since the explosion and was taken to the hospital and admitted . In Dr.
Ruth's opinion, the hospitalization was precipitated by malingering in order to gain a

release from jail and neither the incarceration nor the hospitalization was in any way

related to the explosion.

The AU concluded that the explosion caused a work-related hearing loss that

warranted medical benefits but was not severe enough to warrant income benefits.

Turning to the psychological claim, the AU found Dr. Ruth's opinions to be "most

accurate and authoritative" concerning whether the claimant sustained a work-related

psychological injury due to the explosion . The AU reasoned as follows:

While the undersigned AU acknowledges that Mr. Mills

witnessed a traumatic experience on February 20, 2003, this

AU finds that the event did not cause a psychological injury .

This AU agrees with the opinion of Dr. Ruth that Mr. Mills

does not suffer from post-traumatic stress disorder as a

result of the . . . accident at CTA. This AU notes that Mr.

Mills returned to work at CTA and continued to work until he

was hospitalized for problems that Dr. Shahmalak seemed

to relate to insecurities concerning Mr. Mills' position at CTA.

This AU also notes that Dr. Ruth, Dr. Cooley and Dr.

Weitzel all diagnosed or found malingering or exaggerated

symptoms . Clearly Mr. Mills was being treated for

depression and anxiety prior to February 20, 2003.

The claimant complains that "Dr. Ruth's exam was directed solely toward

whether there was a connection between the hearing loss and the psychiatric

symptoms" and "refuse[d] to take into account the fact that the emotional trauma from

the explosion [was] properly a part of this work injury." The claimant notes that at no

time has he suggested that his hearing loss is the cause of his psychological injury . He

"has maintained that the horrific events he witnessed, the fact that he saw his friends

and co-workers being blown apart and burned to death, is what caused his

psychological injury." Noting also that Dr. Ruth failed to state that his opinions were
based on reasonable medical probability, the claimant asserts that the AU erred by

interpreting Dr. Ruth's opinion "to mean that the psychological injury has no connection

with the explosion" and that substantial evidence failed to support the ALJ's decision .

He concludes that the overwhelming credible medical evidence compels an award for

the psychological injury. We disagree.

A claimant has the burden to prove every element of a claim, including that the

alleged injury is work-related . KRS 342.285 provides that the ALJ's decision is

"conclusive and binding as to all questions of fact" and that the Board "shall not

substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of

fact." KRS 342.290 limits the scope of review by the Court of Appeals to that of the

Board and also to errors of law arising before the Board . Construing KRS 342.285, the

court determined in Paramount Foods, Inc. v. Burkhardt, 695 S.W .2d 418 (Ky. 1985),

that the fact-finder has the sole discretion to determine the quality, character, and

substance of evidence . The court determined in Caudill v. Maloney's Discount Stores,

560 S .W.2d 15, 16 (Ky. 1977), that the 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. Special Fund v. Francis, 708

S .W .2d 641, 643 (Ky. 1986), explained that where the party with the burden of proof

fails to convince the ALJ, the . issue on appeal is whether the favorable evidence was so

overwhelming that the decision was reasonable.

The word "injury" is a legal term of art that is defined in KRS 342.0011(1). Thus,

a physician's opinion that a psychiatric condition does or does not directly result from a

physical injury is of limited value in this case. The claimant does not allege that his
hearing loss caused his psychiatdc .condition . He alleges that the explosion caused it .

Lexington-Fayette Urban County Government v. West, 52 S .W .3d 564, 566-67 (Ky.

2001), explains that a psychiatric condition that results from emotional trauma is not

compensable as an injury. Instead, KRS 342.0011(1) requires a psychiatric condition to

directly result from physical trauma . Officer West's psychiatric condition was an injury

under KRS 342 .0011(1) because it resulted, in part, from a physical assault by a knifewielding suspect.

Rogers v. Sullivan, Ky., 410 S.W.2d 624, 627-28 (1966), stands for the principle

that an expert medical witness is not required to use the magic words "reasonable

probability." It explains that whether expert testimony is stated in terms of a probability

or possibility is a question actually directed to the quality or degree of proof that is

necessary to support a finding . Such proof must be "positive and satisfactory" and

demonstrate a "reasonable certainty" or "reasonable probability" of the fact being

proved . As explained subsequently in Turner v. Commonwealth, 5 S.W.3d 119, 122-23

(Ky. 1999), nothing requires a medical expert to use particular "magic words."

Dr. Ruth was of the opinion that the claimant's only physical injury was a hearing

loss, but he was also of the opinion that the claimant did not suffer from PTSD, that he

did suffer from anxiety, and that the entire impairment from anxiety existed before the

explosion . His opinions were not equivocal or phrased in terms of possibilities. He

stated them clearly and positively, and he supported them with references to the

medical and psychiatric evidence. They constituted substantial evidence to support the

ALJ's conclusions that the explosion did not cause the claimant to sustain a

psychological injury and that he did not suffer from PTSD as a result of the explosion .
The decision of the Court of Appeals is affirmed.

Lambert, C.J ., and Cunningham, Minton, Noble, Schroder and Scott, JJ ., concur.

Abramson, J., not sitting .

COUNSEL FOR APPELLANT,

ULESS MILLS:

BEN THOMAS HAYDON, JR.

P.O. BOX 1 , 155

118 E. BROADWAY

BARDSTOWN, KY 40004

COUNSEL FOR APPELLEE,

CTA ACOUSTICS, INC. :

DWIGHT T. LOVAN

JONES, WALTERS, TURNER & SHELTON, PLLC

1035 FREDERICA STREET

SUITE 120,

P.O. BOX 787

OWENSBORO, KY 42302-0787

WALTER TURNER

JONES, WALTER, TURNER & SHELTON, PLLC

151 NORTH EAGLE CREEK DRIVE

ONE FOUNTAIN PLAZA

SUITE 310

LEXINGTON, KY 40509