          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                       DIVISION ONE


CHARLES L. KIMZEY,                              No. 72323-5-1

                         Respondent,

                                                UNPUBLISHED OPINION


DEPARTMENT OF LABOR AND
INDUSTRIES,

                         Appellant.             FILED: November 30, 2015

      Schindler, J. — The Industrial Insurance Act (MA), Title 51 RCW, expressly

excludes claims for an occupational disease "based on mental conditions or mental

disabilities caused by stress."1 Here, the undisputed record established the claim for

post-traumatic stress disorder was caused by the cumulative effects of working as a

paramedic. We reverse the superior court and affirm the decision of the Department of

Labor and Industries to deny the claim for benefits.

Claim for Benefits


      After serving as a paramedic in the military, Charles L. Kimzey worked as a

paramedic for Evergreen Medic One. Beginning in 2002, Kimzey worked as a

paramedic for Vashon Island Fire and Rescue.



        RCW 51.08.142.
No. 72323-5-1/2



      In June 2012, mental health advanced registered nurse practitioner (ARNP)

Rachel Burgett diagnosed Kimzey with post-traumatic stress disorder (PTSD). Burgett

prescribed a number of medications including an antidepressant. In July, Vashon

Health Center family physician Dr. Gary Koch diagnosed Kimzey with PTSD and severe

depression.

      On July 11, 2012, Kimzey filed a claim for benefits with the Department of Labor

and Industries for an "Industrial Injury or Occupational Disease." Kimzey stated his

PTSD and depression were caused by "[Repeated exposure to some pretty horrific

incidents . . . over a 25 year career in the Fire Service and with Medic One." Kimzey

described the "most troublesome" incidents as involving "people I knew and cared

about." Kimzey states he suffered from "massive, debilitating panic attacks requiring

ongoing mental health therapy and medications."

      The Department denied Kimzey's claim for benefits as an industrial injury or an

occupational disease. The "Notice of Decision" states, in pertinent part:

      This claim for benefits filed on 7/11/2012 while working for VASHON
      ISLAND FIRE & RESCUE is hereby rejected as an industrial injury or
      occupational disease for the following reasons:

       Claims based on mental conditions or mental disabilities caused by stress
       are specifically excluded from coverage by law.

       Kimzey appealed the decision to the Board of Industrial Insurance Appeals. A

number of witnesses testified at the hearing before the Industrial Appeals Judge (IAJ)

including Vashon Island Fire and Rescue paramedic and firefighter William Buchanan

and Vashon Island Fire and Rescue Battalion Chief Mark Brownell. Kimzey also

presented the deposition testimony of ARNP Rachel Burgett and Dr. Gary Koch. The

Department did not call any witnesses.
No. 72323-5-1/3


       Buchanan testified that Kimzey was "a good paramedic" who "thoroughly

enjoyed" his job. However, by February 2012, "it was clear. . . something had affected

[Kimzey's] ability" to function at work. Buchanan testified that Kimzey did not "identify

the triggers for that anxiety .... [T]he identification really was having to deal. . . with

life-threatening emergencies, kids in general."

       Battalion Chief Brownell testified that after Kimzey began experiencing symptoms

of PTSD and depression, the "contrast there . . . was pretty drastic."

       Kimzey testified about a number of incidents including a failed intubation, airlifting

his sixth grade Sunday school teacher after a heart attack, and "see[ing] someone in the

grocery store after you've just tried and failed to resuscitate a family member."

       Kimzey also described emergency calls involving child fatalities, the death of a

mother and her children in a fiery car accident, and the death of a family in a landslide.

Kimzey testified about "[hjorrible, horrible thoughts" when he responded to a call

involving a child with allergies such as imagining "he was going to be dead" or that the

child's airway would close and the rescue effort would be "beyond my skill."

       Kimzey described the symptoms he suffered from as follows:

       It starts out with a low-level anxiety, gastrointestinal discomfort, followed
       by diarrhea. And then I get projectile vomiting.
               And then it really cascades, because I can't stop. And then I have
       these everything is going to — everyone I care about is going to die a
       horrible death, and I'm going to be standing there, and there's not a darn
       thing I can do about it.

               ... I could find no joy.
             Everything was a catastrophe. Everything I loved and cared about
       was going to be ripped from me violently and bloodily, and I couldn't stop
       it.
No. 72323-5-1/4



       In her deposition, Burgett testified that on June 18, 2012, Kimzey "presented with

symptoms consistent with" PTSD and a major depressive disorder. Burgett testified

PTSD is "an anxiety disorder" that manifests in "a cluster of symptoms" such as

"avoidance, severe anxiety, reexperiencing of the trauma, nightmares, easy startle

reflect, [and] inability to face situations similar to the trauma." Burgett said Kimzey was

having nightmares "where he was unable to leave the station, where he felt trapped

there and felt anxious when he woke up," and "[d]reams of death and injury happening

to children, not being able to help children on calls, things like that."

       Burgett described the "research that shows that [emergency medical technicians]

and paramedics and firefighters dealing with children is one of the more significant

traumatic events in their career." Burgett testified that Kimzey's PTSD was "[c]learly

from the cumulative effects of trauma in his work environment." Burgett described the

PTSD Kimzey suffered from as "a buildup of triggers, and I think ... the most troubling

events involved children." But Burgett testified that although Kimzey referred to

incidents with children several times, his PTSD was "a cumulation of incidents that

occurred over his work career." According to Burgett, "[m]ore-probably-than-not"

Kimzey's PTSD and depressive disorder were "work related."

       Dr. Koch is a family physician at Vashon Health Center. Kimzey saw Dr. Koch

on July 5, 2012. Kimzey told Dr. Koch that he had not been to work since February. Dr.

Koch testified that Kimzey suffered from severe depression. "On the PHQ-9[2]

depression score [Kimzey] scored 22 points, which is in a severe depression range."

Dr. Koch believed Kimzey also "met the criteria" for PTSD with a bipolar component.



       2 Patient health questionnaire.
No. 72323-5-1/5


Dr. Koch testified that Kimzey was "severely depressed, and I didn't think he should

return to work .... I didn't think he was fit for duty."

       In response to whether Kimzey's PTSD was the result of a single event or

cumulative events, Dr. Koch testified that in his opinion, PTSD "could be either; you can

have one particular bad exposure or you can have cumulative ones." Dr. Koch testified

that Kimzey suffered from "a cumulative memory of many severe traumatic images."

Dr. Koch did not recall Kimzey "going into any individual detail about specific cases."

Dr. Koch said Kimzey exhibited "classic symptoms" of cumulative events that resulted in

PTSD "caused by the stresses of his employment." When asked about Kimzey's ability

to return to work as a paramedic in the future, Dr. Koch said that depended on whether

the work would trigger "stressful stuff if he went back and were placed in a stressful

situation of a paramedic role."

       The Department did not dispute Kimzey suffered from PTSD and depression.

The Department argued that as a matter of law, Kimzey's PTSD and depression did not

qualify as an occupational disease or as an industrial injury caused by a sudden and

traumatic event. Kimzey argued his PTSD and depression was caused by separate and

distinct traumatic events and the cumulative effect of those events.

       The IAJ issued a proposed decision and order. The IAJ affirmed the

Department's decision to deny Kimzey's claim for benefits as an industrial injury or an

occupational disease. The IAJ concluded Kimzey was not entitled to benefits for an

industrial injury because the record did not support finding that he "sustained a sudden

and traumatic event during the course of his employment." The IAJ concluded Kimzey

was not entitled to benefits for an occupational disease for PTSD because "the law is
No. 72323-5-1/6


clear that the type of stress claim raised ... is not compensable under RCW

51.08.142." The proposed decision and order states, in pertinent part:

       The claimant's attorney did a yeomen's job of trying to show that Mr.
       Kimzey has separate distinct instances of sudden and traumatic events
       that culminated in his PTSD and depression. The record simply does not
       support that assertion because the treating experts were very clear that
       Mr. Kimzey's mental health conditions resulted from the accumulation of
       years of working as a paramedic.. . .
              ... Mr. Kimzey has worked more than 25 years as a paramedic
       and suffers from PTSD and depression resulting from the accumulation of
       his stress and experiences. Nonetheless, the legislature has spoken, and
       conditions caused by stress are not compensable under the Industrial
       Insurance Act as occupational disease.

       Kimzey appealed the proposed decision and order to the Board. Kimzey argued

the testimony of Burgett and Dr. Koch established he was entitled to benefits for an

industrial injury and an occupational disease. Kimzey argued, in pertinent part:

              By its very definition, PTSD is caused by an event or events that
       are traumatic in nature, which results in an injury or injuries to the mind; a
       psychological response to intense fear, helplessness or horror. In other
       words, Mr. Kimzey's diagnosis of PTSD, as supported by both Gary Koch,
       M.D., and Rachel Burgett, RN, ARNP, requires that there be an initiating
       event of an extreme traumatic stressor involving direct personal
       experience.

              . . . [B]oth of Mr. Kimzey's experts testified that any one of the
       instances described in his testimony could have resulted in his mental
       condition, but his diagnosis was based on the culmination of several
       events, due in part by the sheer number of traumatic events Mr. Kimzey
       had witnessed. Any one of these events, or each of these events,
       resulted in an immediate mental change which soon thereafter manifested
       through severe gastrointestinal and weight loss issues.[3]

The Board denied the appeal. The Board adopted the proposed decision and order as

the final decision.




        Emphasis in original.
No. 72323-5-1/7


Superior Court Appeal

        Kimzey filed an appeal of the Board decision in superior court. Kimzey filed a

jury demand. The Department filed a motion to strike the jury demand. The

Department conceded Kimzey had PTSD and depression caused by his work as a

paramedic. However, because the administrative record was undisputed, the

Department argued the only question was whether as a matter of law, Kimzey was

entitled to benefits for his PTSD and depression as an industrial injury or an

occupational disease. The court agreed and granted the motion to strike the jury

demand. The "Order Striking Jury Demand" states, in pertinent part:

              Based on the Board of Industrial Insurance Appeals record, the
       pleadings, and Declarations, the court finds that there are no facts in
       dispute. The question of whether RCW 51.08.100 or RCW 51.08.140
       applies to the factual situation presented here is a question of law for this
       Court to decide. The Department's Motion to Strike the Jury Demand
       should, therefore, be granted.

       In his trial brief, Kimzey argued the evidence established he was entitled to

benefits for PTSD and severe depression as both an occupational disease and an

industrial injury.

              The evidence establishes that Mr. Kimzey's mental illness,
       diagnosed as PTSD and severe depression, arose naturally and
       proximately out of his employment as a paramedic at VIFR [(Vashon
       Island Fire and Rescue)], in the sense that there are no other intervening
       independent and sufficient causes for the mental illness and that Mr.
       Kimzey would not have suffered such illness when he did but for the
       conditions of his employment at VIFR. The stress Mr. Kimzey
       experienced has been objectively corroborated by co-workers and
       supervisors, all of whom highlighted the fact that the stress Mr. Kimzey
       experienced in the line of duty was unusual and not experienced in
       everyday life.

       The Department asserted the undisputed evidence established Kimzey was not

entitled to benefits for PTSD and depression caused by working as a paramedic. The
No. 72323-5-1/8


Department argued the Industrial Insurance Act (IIA), Title 51 RCW, excludes benefits

for an occupational disease or industrial injury caused by stress.

       Kimzey ... is seeking allowance of his mental health condition, post
       traumatic stress disorder (PTSD) and related depression. The
       Department does not dispute that he has these conditions, or that they
       were caused by his employment. Mr. Kimzey's claim was rejected
       because mental health conditions caused by stress are specifically and
       completely foreclosed by statute as occupational diseases. The other
       possible avenue of coverage is lacking because Mr. Kimzey does not
       have an industrial injury: no discrete event has been identified or causally
       linked to his mental health condition; rather, he and his attending providers
       have presented this condition as one arising out of the cumulative effects
       of his 25-year-long career as a paramedic. The undisputed facts show
       that Mr. Kimzey does not have a compensable condition under the
       Industrial Insurance Act.

              . . . Here, there is no medical testimony suggesting that Mr.
       Kimzey's PTSD or depression were caused by a specific event, let alone
       that this is more probable than not true. All the medical testimony proved
       that Mr. Kimzey is suffering from the cumulative effects of a stressful
       career, which unfortunately is not compensable under the Act.

       The court ruled Kimzey was entitled to benefits for PTSD as an occupational

disease and reversed the decision and order of the Board. The court entered findings

of fact and conclusions of law and awarded Kimzey attorney fees. The findings of fact

and conclusions of law state:

                                   I. FINDINGS OF FACT

       1.1    Charles Kimzey sustained an occupational disease, to wit, PTSD.

       1.2    The findings and conclusions of the Board of Industrial Insurance
              Appeals have been rebutted by Mr. Kimzey by a preponderance of
              the evidence.

       1.3    Charles Kimzey's PTSD arose naturally and proximately out of
              distinctive conditions of his employment as a paramedic for Vashon
              Fire and Rescue.
No. 72323-5-1/9



         1.4   Charles Kimzey's PTSD arose naturally out of and was proximately
               caused by the cumulative effects of traumatic incidents during his
               job as a paramedic during his career.

         1.5   In the course of his work as a paramedic in dealing with traumatic
               incidents and the life and death situations that were stressful to
               him, Charles Kimzey became symptomatic of PTSD, a disease
               caused by trauma.

                                II. CONCLUSIONS OF LAW

         2.1   The Findings and Conclusions of the Board of Industrial Insurance
               Appeals are in error.

         2.2   Charles Kimzey's condition of PTSD is an occupational disease.

         2.3   Charles Kimzey's PTSD arose naturally and proximately out of
               distinctive conditions of his employment as a paramedic for Vashon
               Fire & Rescue, and he is entitled to coverage under the Industrial
               Insurance Act.


         2.4   The findings and conclusions of the Board of Industrial Insurance
               Appeals have been rebutted by Mr. Kimzey by a preponderance of
               the evidence.


         The Department appeals the superior court order reversing the decision of the

Board.


Standard of Review


         In an appeal from the Board, the superior court acts in an appellate capacity and

reviews the decision de novo "based solely on the evidence and testimony presented to

the Board." Leuluaialii v. Dep't of Labor & Indus., 169 Wn. App. 672, 677, 279 P.3d 515

(2012); Ruse v. Dep't of Labor & Indus., 138 Wn.2d 1, 5, 977 P.2d 570 (1999). The

Board's decision is prima facie correct and the burden of proof is on the party

challenging the decision. RCW 51.52.115; Ruse, 138Wn.2dat5.
No. 72323-5-1/10



       RCW 51.52.115 states, in pertinent part:

       The hearing in the superior court shall be de novo, but the court shall not
       receive evidence or testimony other than, or in addition to, that offered
       before the board or included in the record filed by the board in the superior
       court as provided in RCW 51.52.110. ... In all court proceedings under or
       pursuant to this title the findings and decision of the board shall be prima
       facie correct and the burden of proof shall be upon the party attacking the
       same. If the court shall determine that the board has acted within its
       power and has correctly construed the law and found the facts, the
       decision of the board shall be confirmed; otherwise, it shall be reversed or
       modified.


       In an industrial insurance case, we review the decision of the superior court, not

the decision of the Board. RCW 51.52.140; Rogers v. Dep't of Labor & Indus., 151 Wn.

App. 174, 179-81, 210 P.3d 355 (2009). Our review of the superior court's decision is

governed by RCW 51.52.140. RCW 51.52.140 states that an "[ajppeal shall lie from the

judgment of the superior court as in other civil cases." Accordingly, the statutory

scheme results in a different role for this court than is typical for appeals from

administrative decisions. Rogers, 151 Wn. App. at 180. We review" 'whether

substantial evidence supports the trial court's factual findings and then review, de novo,

whether the trial court's conclusions of law flow from the findings.'" Rogers, 151 Wn.

App. at 180 (quoting Watson v. Dep't of Labor & Indus., 133 Wn. App. 903, 909, 138

P.3d 177 (2006)). Where, as here, the facts the Board found are undisputed, we treat

the facts as verities. Roller v. Dep't of Labor & Indus., 128 Wn. App. 922, 927, 117 P.3d

385 (2005).

       Preliminarily, the Department contends the finding of fact that states Kimzey

"sustained an occupational disease, to wit, PTSD;" and the finding of fact that states the

decision of the Board was "rebutted by Mr. Kimzey by a preponderance of the evidence"

are conclusions of law subject to de novo review. We agree. We also note the



                                             10
No. 72323-5-1/11


conclusions of law repeat these two findings. Conclusion of law 2.2 states, "Kimzey's

condition of PTSD is an occupational disease." Conclusion of law 2.4 states the

decision of the Board has "been rebutted by Mr. Kimzey by a preponderance of the

evidence."

       The Department does not challenge the findings of fact that state Kimzey's PTSD

"arose naturally and proximately out of distinctive conditions of his employment as a

paramedic for Vashon Fire and Rescue;" that his PTSD was "caused by the cumulative

effects of traumatic incidents during his job as a paramedic during his career;" or that he

dealt with "traumatic incidents and the life and death situations .. . were stressful to

him" and he "became symptomatic of PTSD, a disease caused by trauma."

       The Department contends that because the legislature categorically excluded

benefits for PTSD as an occupational disease, the court erred in concluding Kimzey

was entitled to benefits as an occupational disease.

       Statutory construction is a question of law we review de novo. Cockle v. Dep't of

Labor & Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001). Our primary objective is to

ascertain and give effect to legislative intent. Cockle, 142 Wn.2d at 807. Ifthe

language of a statute is plain and unambiguous, we must give effect to the plain

meaning as the expression of legislative intent. Cockle, 142 Wn.2d at 807. We review

Washington Administrative Code regulations under the same rules of statutory

interpretation. Overlake Hosp. Ass'n v. Dep't of Health, 170 Wn.2d 43, 51-52, 239 P.3d

1095(2010).




                                             11
No. 72323-5-1/12


Occupational Disease

        Under the IIA, a worker is entitled to disability benefits for an industrial injury or

an occupational disease. RCW 51.32.010, .180. An industrial injury is "a sudden and

tangible happening, of a traumatic nature, producing an immediate or prompt result, and

occurring from without, and such physical conditions as result therefrom." RCW

51.08.100.4 An occupational disease is "such disease or infection as arises naturally

and proximately out of employment." RCW 51.08.140.

        In 1988, the legislature directed the Department to adopt rules excluding claims

for mental conditions or disabilities caused by stress from the definition of occupational

disease. Laws of 1988, ch. 161, § 16. RCW 51.08.142 states, "The department shall

adopt a rule pursuant to chapter 34.05 RCW that claims based on mental conditions or

mental disabilities caused by stress do not fall within the definition of occupational

disease in RCW 51.08.140."

        In accord with the directive of the legislature, the Department adopted WAC 296-

14-300.5 WAC 296-14-300(1) expressly states that claims "based on mental conditions

or mental disabilities caused by stress do not fall within the definition of an occupational

       4 On appeal, Kimzey does not claim that his PTSD is an industrial injury.
       5 We refer to the WAC in effect at the time of Kimzey's claim throughout the opinion. However,
we note that the WAC was recently amended. As amended, WAC 296-14-300(2) states:
        (a) Stress resulting from exposure to a single traumatic event will be adjudicated as an
        industrial injury. See RCW 51.08.100.
                 (b) Examples of single traumatic events include: Actual or threatened death,
        actual or threatened physical assault, actual or threatened sexual assault, and life-
        threatening traumatic injury.
                 (c) These exposures must occur in one of the following ways:
                 (i) Directly experiencing the traumatic event;
                 (ii) Witnessing, in person, the event as it occurred to others; or
                 (iii) Extreme exposure to aversive details of the traumatic event.
                 (d) Repeated exposure to traumatic events, none of which are a single traumatic
        event as defined in subsection (2)(b) and (c) of this section, is not an industrial injury (see
        RCW 51.08.100) or an occupational disease (see RCW 51.08.142). A single traumatic
        event as defined in subsection (2)(b) and (c) of this section that occurs within a series of
        exposures will be adjudicated as an industrial injury (see RCW 51.08.100).


                                                    12
No. 72323-5-1/13


disease in RCW 51.08.140." See Boeing Co. v. Key, 101 Wn. App. 629, 634, 5 P.3d 16

(2000) (A mental condition caused by stress that results from "events that unfolded

gradually over a period of time," or even "from a series of incidents over a period of a
few days," is not compensable as an occupational disease.). However, WAC 296-14-

300(2) states that a mental condition or disability caused by stress that results from

"exposure to a single traumatic event" is compensable as an industrial injury.

       WAC 296-14-300 states, in pertinent part:

       (1) Claims based on mental conditions or mental disabilities caused by
       stress do not fall within the definition of an occupational disease in RCW
       51.08.140.
              Examples of mental conditions or mental disabilities caused by
       stress that do not fall within occupational disease shall include, but are not
       limited to, those conditions and disabilities resulting from:
               (a) Change of employment duties;
               (b) Conflicts with a supervisor;
               (c) Actual or perceived threat of loss of a job, demotion, or
       disciplinary action;
              (d) Relationships with supervisors, coworkers, or the public;
              (e) Specific or general job dissatisfaction;
              (f) Work load pressures;
              (g) Subjective perceptions of employment conditions or
       environment;
              (h) Loss of job or demotion for whatever reason;
              (i) Fear of exposure to chemicals, radiation biohazards, or other
       perceived hazards;
              (j) Objective or subjective stresses of employment;
              (k) Personnel decisions;
              (1) Actual, perceived, or anticipated financial reversals or difficulties
       occurring to the businesses of self-employed individuals or corporate
       officers.
              (2) Stress resulting from exposure to a single traumatic event will
       be adjudicated with reference to RCW 51.08.100.

       Accordingly, a mental condition or disease that is caused by stress from the

"[objective or subjective stresses of employment" is not compensable as an

occupational disease. WAC 296-14-300(1 )(j). But a claim for work-related stress



                                              13
No. 72323-5-1/14


caused by a sudden, tangible, external traumatic event that produces an immediate

result is compensable as an industrial injury under RCW 51.08.100. WAC 296-14-

300(2); Boeing, 101 Wn. App. at 634.

      The plain and unambiguous language of RCW 51.08.142 and WAC 296-14-

300(1) exclude mental conditions and disabilities caused by stress that is not the result

of a single traumatic event from the definition of occupational disease. Because the

undisputed testimony establishes Kimzey's PTSD and depression was the result of

traumatic and stressful events over time while working as a paramedic, we hold the

superior court erred in reversing the Department's denial of benefits as an occupational

disease.


       Rothwell v. Nine Mile Falls School District, 149 Wn. App. 771, 206 P.3d 347

(2009), supports our analysis. In Rothwell, the court addressed whether the plaintiffs

lawsuit for intentional and negligent infliction of emotional distress was barred by the IIA.

Rothwell, 149 Wn. App. at 776-77. The plaintiff argued her action was not barred by the

IIA because her claim for PTSD "does not arise out of an industrial injury or

occupational disease." Rothwell, 149 Wn. App. at 777. The court held the lawsuit was

not barred by the IIA because her "PTSD is not an injury or occupational disease under

the [IIA]." Rothwell, 149 Wn. App. at 782. The court concluded that because the

plaintiff's "mental condition was not the result of exposure to a single traumatic event,"

her PTSD did not meet the definition for a compensable injury under the IIA. Rothwell,

149 Wn. App. at 781. The court concluded that because the plaintiff's PTSD was the

result of "a series of incidents over a period of a few days," her mental condition did not

meet the definition for an occupational disease. Rothwell, 149 Wn. App. at 782.




                                             14
No. 72323-5-1/15


       While Kimzey argues on appeal that the medical testimony establishes "trauma"

not "stress" caused his PTSD, he did not make this argument at the administrative

hearing before the Board.

       Under RCW 51.52.104, a party waives an argument "not specifically set forth" in

the petition for review. Leuluaialii, 169 Wn. App. at 684; Allan v. Dep't of Labor &

Indus.. 66 Wn. App. 415, 422, 832 P.2d 489 (1992). RCW 51.52.104 states, in

pertinent part:

       [A]ny party may file with the board a written petition for review . . . [that]
       shall set forth in detail the grounds therefor and the party or parties filing
       the same shall be deemed to have waived all objections or irregularities
       not specifically set forth therein.

In the notice of appeal to the Board, Kimzey states the cause of "his psychological or

psychiatric condition" is "on-the-job stress." In his petition for review, Kimzey asserts his
PTSD was caused by "an initiating event of an extreme traumatic stressor" and the

"mental stress to which Mr. Kimzey was exposed and to which he was continually

subjected over the period of his career."

       In any event, the administrative record does not support Kimzey's argument that

his PTSD was caused by only trauma. Under the IIA, a worker who claims rights is held

"to strict proof of their right to receive the benefits provided by the act." Olvmpia

Brewing Co. v. Dep't of Labor & Indus., 34 Wn.2d 498, 505, 208 P.2d 1181 (1949),

overruled on other grounds by Windust v. Dep't of Labor & Indus., 52 Wn.2d 33, 323




                                              15
No. 72323-5-1/16



P.2d 241 (1958).6 Kimzey did not present any expert testimony that draws a distinction

between trauma and stress as it relates to PTSD. Burgett and Dr. Koch testified that

during his career as a paramedic, Kimzey experienced traumatic events that resulted in

debilitating stress and his PTSD was caused by stress. The undisputed testimony

establishes that Kimzey's PTSD was caused by "intense psychological stress" and

traumatic incidents over the course of a 25-year career as a paramedic.

        Because a mental condition caused by cumulative work-related stress is

expressly excluded from coverage as an occupational disease, the superior court erred

in reversing the decision and order of the Board denying Kimzey's PTSD claim for

benefits as an occupational disease. We reverse the superior court decision and the

award of fees. We affirm the decision and order of the Board.




WE CONCUR:
                                                        %J)jUh t&VG,,,^

     \f\Mt^ , o                                         'fedKeJR, (/
                                                                                                   er;




       6 Kimzey filed a motion asking this court to take judicial notice of two nonconsecutive pagespf the
Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as "the universal authority for psychratric '
diagnosis." In response, the Department submitted a copy ofthe DSM-5. The Department does n6T°
object provided the court take judicial notice of the entire DSM-5. But appellate review of industrial
insurance cases is "based solely on the evidence and testimony presented to the Board." Leuluaialii, 169
Wn. App. at 677. We decline to take judicial notice of the DSM-5 because it was not submitted below or
part of the administrative record.


                                                   16
