The Law

Post-Traumatic Worker’s Comp by Ron Davis Trauma caused by contact with a dying victim of a shooting has qualified a Kentucky shopping center security guard for workers’ compensation benefits. The shooting occurred where the security guard was employed part-time: Fayette Mall in Lexington. On the day of the incident, the guard, who also worked for the local police department, had just arrived for duty at the shopping center when he received a call from police headquarters. From the dispatcher there, the guard learned that a man threatening to commit suicide might be on center property. The guard later spotted the man near a bus stop in front of the shopping center. The guard then confronted the man, identified himself as a police officer, and, noticing that the man carried a pistol, drew his own pistol. After a short conversation between the two, the man drew his pistol, pointed it at the security guard, and advanced toward him. The security guard then fired four shots at the man, hitting him three times. When the man continued to advance toward the security guard and hold his pistol as if to shoot, the security guard fired four more shots before the man fell to the ground. The guard then administered first aid to the wounded man until paramedics arrived. The man later died. Shortly after the incident, the security guard began to experience nightmares, flashbacks, and paranoia related to blame for the shooting. He also recalled that in aiding the dying man, he was in contact with that person’s bodily fluids and suspected that he could have contracted such diseases as AIDS and tuberculosis. (For some unexplained reason, the dead man’s blood was never tested for diseases.) After returning to police and security work, he began to lose concentration, became more emotional, and developed road rage. He eventually filed for workers’ compensation, and five certified psychiatrists, after examination of the guard, agreed that he suffered from post-traumatic stress disorder and that he should not return to police work. But the Workers’ Compensation Board refused to award him benefits, explaining that “his contact with the bodily fluids of another, no matter how offensive, does not constitute a physically traumatic event.” The guard appealed that ruling. A Kentucky court, in overruling the Workers’ Compensation Board, explained, “The police officer took immediate action in an attempt to save the other man’s life, exposing himself fully to the noxious effects of the man’s blood and mucous. Later, he became concerned about the significant health risks as a result of exposure to the man’s bodily fluids.... We conclude that an event of such tangible and significant physical contact constitutes a physical trauma.” (White v. Lexington-Fayette Urban County Government, 2005 WL 1250304 [Ky.App.]) Decision: May 2005 Published: June 2005