Kentucky Court of Appeals Decisions (Minutes) for November 1, 2013 (Nos. 1007-1023). State trooper’s claim for PTSD in shooting incident; Wrongful death claim alleged from handling of 911 call and calling EMT.

Boyle.County.HST.Ohara2

Historical Marker at Boyle County Court House
Danville, Kentucky

Kentucky Court of Appeals Decisions (Minutes) for November 1, 2013 (Nos. 1007-1023);  17 decisions were announced by COA this date, with 1 of those decisions designated “To Be Published”).

For a copy of the minutes filed at the AOC web site, click here.

Click here for complete list of all archived Court of Appeals Minutes that you can download from the Administrative Office of the Courts web site.

Today’s historical marker honors Theodore O’Hara.  His bio can be found by clicking here.  His poem, The Bivouac of the Dead was written in 1847 in honor of Kentucky soldiers who died at the Battle of Buena Vista and the Mexican-American War.

The muffled drum’s sad roll has beat
The soldier’s last tattoo;
No more on Life’s parade shall meet
That brave and fallen few. 

On fame’s eternal camping ground
Their silent tents to spread,
And glory guards, with solemn round
The bivouac of the dead.

Short summary of the published decisions for this week are (click on the link for the full text of the decision from AOC):

1023. Workers Compensation.
Kentucky State Police vs. McCray
COA, Published 11/1/2013
Workers Comp

STUMBO, JUDGE: 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. 

Short Tort Report:

1016.  Wrongful Death Claim.
Estate of Cheryl Elaine Powers vs. Kathleen Murphy
COA, Not PUblished 11/1/2013
Hardin County,  Judge Ken Howard

Wrongful death claim arising from handling of 911 call response by center.

In August 2012, the case went to trial on the negligence claim against Murphy concerning her handling of Powers’ 911 call. In its case-in-chief, the Estate presented the expert medical testimony of Dr. George Nichols. At the close of the Estate’s evidence, Murphy moved for a directed verdict. After extensive argument by the parties on the record, the trial court granted Murphy’s motion finding that the Estate failed to provide that Murphy’s initial misinterpretation of Powers’ address and the subsequent delay in providing Shannon with the correct information was a substantial factor or cause in Powers’ death. Accordingly, all claims against Murphy were dismissed. The Estate thereafter appealed to this Court. Additional facts are set forth as necessary. 

The trial court had the duty to determine whether the Estate’s evidence created an issue upon which the jury could have reasonably differed as to whether Murphy’s actions were a substantial factor in causing Powers’ death. The mere possibility such causation is insufficient, and “when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced” it was the duty of the trial court to direct a verdict. Texaco, Inc., 536 S.W.2d at138. We conclude that the trial court’s decision to grant a directed verdict was proper.

Because we have affirmed the trial court’s directed verdict in favor of Murphy, which dismissed all remaining claims in this case, all other issues on appeal are necessarily rendered moot.

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