Ky.: Supreme Court Denies Total Disability Benefits for PTSD

By Diane Cadrain Apr 8, 2015

A former truck driver may receive partial benefits for psychological injuries stemming from a horrific accident, the Kentucky Supreme Court decided, turning down her claim for total disability benefits.

Kelly Pass and her husband drove a truck for Paschall Truck Lines and were in West Virginia one day in 2008 when the truck broke down. While calling for help, Pass felt an impact, apparently from another collision while the truck was disabled, and lost consciousness. Regaining consciousness, she was able to escape the truck, which had caught fire and subsequently exploded. At an emergency room, she was diagnosed with blunt force trauma to the upper body stemming from the accident.

In November 2009, Pass filed a workers' compensation claim for her physical injuries. She later amended her claim to encompass psychological injuries as well. She initially received temporary total disability and medical benefits.

Two doctors examined Pass on behalf of the truck line. At the time of their examinations, Pass had not alleged any psychological injuries. One company doctor found that Pass’s injuries stemmed from a 1995 accident when her former husband ran her over, leaving her with multiple injuries. The other found no change in Pass’s condition stemming from the 2008 accident and explosion.

When her comp claim reached an administrative law judge (ALJ), it was dismissed for two reasons: the ALJ decided that there hadn’t been enough evidence of work-related permanent physical injuries, and that Pass had not given timely notice of her psychological injuries. Eventually, the Workers’ Compensation Board reversed only the decision on the psychological injuries, ruling that those claims were timely, and awarding Pass was awarded permanent partial disability benefits for her psychological injuries.

Pass appealed, claiming among other things that she should have been awarded permanent total disability benefits for the psychological injuries. Pass argued that the ALJ should have listened to Dr. Susan Dorski, who had diagnosed her with post-traumatic stress disorder (PTSD) as a result of the work-related truck accident, believed that Pass would never be able to drive a tractor trailer truck again for emotional and physical reasons, and also believed that with sufficient treatment, Pass could work in an office.

Instead, though, the ALJ had listened to Dr. David Shraberg, a neurologist and psychiatrist who had examined her on behalf of Paschall, assigned her 3 to 5 percent impairment, and also believed, like Dr. Dorski, that she could work in an office.

The Kentucky Supreme Court stated that the ALJ had had total discretion to choose Dr. Shraberg’s opinion over Dr. Dorski’s. Both doctors, the court noted, believed that with treatment Pass could return to gainful employment. Dr. Shraberg’s rating, the court said, was based on AMA guidelines and supported by substantial evidence. The court also noted that Pass was eligible to receive benefits for her psychological injury even though there was no finding of a permanent physical injury.

“Workers' compensation may be awarded for a permanent psychological injury because Pass suffered a temporary physical injury due to the work-related truck accident,” the court said. Kentucky is one of 15 states that will award benefits for PTSD only if there is a physical injury involved.

Pass v. Paschall Truck Lines, Ky.,No. 3109722013-SC-000255-WC (Feb. 19, 2015).

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.

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