# IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINIONIS DESIGNATED "NOT TOBE PUBLISHED." PURSUANT TOTHE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR76 .28(4)(C), THIS OPINIONIS NOT TOBE PUBLISHEDANDSHALL NOT BE CITED ORUSEDAS BINDING PRECEDENT INANY OTHER CASE INANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDEREDAFTERJANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NOPUBLISHED OPINIONTHAT WOULDADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISIONINTHE FILED DOCUMENT ANDA COPY OF THE ENTIRE DECISION SHALL BE TENDEREDALONGWITHTHE DOCUMENT TOTHE COURT ANDALL PARTIES TOTHE ACTION

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# Anurmt Courf of 2007-SC-00237-WC

RENDERED: FEBRUARY 21, 2008

NOT TO BE PUBLISHED

ONAPPEAL FROM

COURT OF APPEALS V . 2006-CA-001781-WC

WORKERS' COMPENSATION NO . 05-00215 ULESS MILLS APPELLANT

CTAACOUSTICS, 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 organismbut 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 affirmbecause we are not convinced that the evidence compelled a favorable decision. The claimant began working for the defendant-employer (CTA) in 1973. Whiledelivering 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 fromthe explosion, and experienced an immediate hearing loss in his right ear. No debris fromthe explosion struck him . Several co-workers were burned so severely as to be unrecognizable, and a number of themdied. The claimant filed two applications for benefits. In one he alleged that the explosion caused himto 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 fromhis 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 himsince 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 symptombefore 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 himto Dr . Shahmalak, a psychiatrist . The claimant did not work after October 28, 2003. He testified that his employer decided to change hisjob froman hourly position to a salaried one and that he was upset that the employer posted thejob without asking himif he was interested. Heacknowledged 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 himfromworking. 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 hisjob. 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 hisjob and his fear of losing hisjob. 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 frompost-traumatic stressdisorder (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 fromthe explosion and indicated that he wanted to draw disability. He was hospitalized for psychiatric reasons fromFebruary 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%fromthe explosion) . Dr. Weitzel noted that two tests were positive for malingering, that both IQand PDSQtest results were unreliable, and that the MMPI results were skewed toward symptomexaggeration and unreliable. He stated, however, that the claimant fit the criteria for PTSD even without the embellishment. The claimant also submitted a report fromDr. Cooley, who examined himinitially 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 fromthe 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 fromDrs. 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 examthe 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, symptomexaggeration, and personality disorder. Heassigned 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 fromthe 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 froma 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 tojail . While 

### injail, 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 frompost-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 examwas 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 werebased 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. Aclaimant 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 itsjudgment 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 fromthe 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 termof art that is defined in KRS 342.0011(1) . Thus, a physician's opinion that a psychiatric condition does or does not directly result froma physical injury is of limited value in this case. The claimant does not allege that hishearing 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 fromemotional trauma is not compensable as an injury. Instead, KRS 342.0011(1) requires a psychiatric condition to directly result fromphysical trauma . Officer West's psychiatric condition was an injury under KRS 342.0011(1) because it resulted, in part, froma 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 fromanxiety, and that the entire impairment fromanxiety existed before the explosion. His opinions were not equivocal or phrased in terms of possibilities. He stated themclearly and positively, and he supported themwith 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 fromPTSD 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 FORAPPELLANT, ULESS MILLS: BEN THOMAS HAYDON, JR . P.O . BOX 1 ,155 118 E. BROADWAY BARDSTOWN, KY 40004 COUNSEL FORAPPELLEE, 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