                     In the Missouri Court of Appeals
                             Eastern District
                                        DIVISON FOUR

MARK BEHAN,                                   )      No. ED101139
                                              )
       Respondent,                            )      Appeal from the Circuit Court of
                                              )      the City of St. Louis
vs.                                           )
                                              )
FIREMEN’S RETIREMENT SYSTEM                   )      Honorable David L. Dowd
OF ST. LOUIS,                                 )
                                              )
       Appellant.                             )      Filed: December 23, 2014

                                           Introduction

       The Firemen’s Retirement System of St. Louis (FRS) appeals the trial court’s judgment

reversing the decision of the Board of Trustees of the Firemen’s Retirement System (Board) to

deny Mark Behan’s application for accidental disability retirement benefits. On appeal, Mr.

Behan claims that the trial court did not err in reversing the Board’s decision because he filed his

application for accidental disability retirement benefits within the five-year statute of

limitations.1 We affirm.

                              Factual and Procedural Background

       Mr. Behan began working as a firefighter for the Fire Department of the City of St. Louis

(Fire Department) in 1992, and he transferred to the fire marshal’s investigative unit in 1995.

1
  Pursuant to Rule 84.05(e), when the circuit court reverses the decision of an administrative
agency, the party aggrieved by the agency's decision files the appellant's brief. Therefore, Mr.
Behan filed the appellant’s brief, and the FRS filed its brief as the respondent.
During his nineteen-year tenure with the Fire Department, Mr. Behan investigated as many as

2,000 fires and 50 fatalities. Mr. Behan suffered no psychological disabilities prior to joining the

Fire Department.

       On May 3, 2002, Mr. Behan responded to a second alarm for a fire at the Gravois

Refrigeration Company. In their efforts to extinguish the fire, two of Mr. Behan’s co-workers

and friends, Firefighters Rob Morrison and Derek Martin, died. Mr. Behan’s investigation of

this fire involved photographing the scene, interviewing witnesses, and seizing Mr. Morrison’s

and Mr. Martin’s gear. Mr. Behan did not note any changes in his behavior immediately

following the May 2002 fire.

       In late 2007, Mr. Behan received a subpoena to testify in a deposition for a wrongful

death action arising from the May 2002 fire. In preparation for his deposition, Mr. Behan

studied photographs, reviewed the autopsy reports, and listened to the audio recordings “over a

hundred times . . . in order to create a timeline and put everything in place.” The audio

recordings included “everything that transpired on radio, from the first calls concerning the fire,

the dispatches, every company striking on the scene, communication between the companies, . . .

any radio calls for distress, and everything clear through till [sic] the end of the incident,”

including Mr. Morrison’s and Mr. Martin’s “dying pleas.”

       In early 2008, after providing the deposition testimony, Mr. Behan began to suffer

phobias, nightmares, difficulty sleeping, and suicidal ideation, and his “drinking increased

significantly.” In March 2008, Mr. Behan experienced his first “major panic attack” while riding

an escalator at Busch Stadium.

       Mr. Behan first visited Mary Carol Strauss-Barrett, a licensed clinical social worker, on

April 28, 2008. On that date, Ms. Strauss-Barrett, diagnosed Mr. Behan with symptoms of post-



                                                 2
traumatic stress disorder (PTSD), and she began counseling him two to three times per week.2

On May 18, 2008, Ms. Strauss-Barrett concluded that Mr. Behan suffered “Single PTSD,” a

substance abuse disorder, and a co-morbid mood disorder.

         In June 2008, Mr. Behan took a medical leave, and Ms. Strauss-Barrett referred Mr.

Behan to Dr. Monica Franks, whom Mr. Behan visited approximately three times per week from

June 2008 to August 2008. Mr. Behan returned to work when Dr. Franks determined he was fit

for duty.

         In Spring 2009, Mr. Behan sought care through the Fire Deparment’s employee

assistance program (EAP) because he “was getting offtrack [sic].”            In March 2010, at the

recommendation of his marriage counselor, Mr. Behan went to Hyland Behavioral Health Center

at St. Anthony’s Medical Center, where he received two weeks’ out-patient treatment for alcohol

abuse.

         In Fall 2010, Mr. Behan’s primary care physician, Dr. Tim McCann, determined that Mr.

Behan “needed some sort of medication,” prescribed him Zoloft, and referred him to Dr. Adam

2
 Although not in the record, other courts have recognized that the Diagnostic and Statistical
Manual of Mental Disorders (DSM IV) describes PTSD as follows:

            The essential feature of Posttraumatic Stress Disorder is the development of
            characteristic symptoms following exposure to an extreme traumatic stress or
            involving direct personal experience of an event that involves actual or
            threatened death or serious injury, or other threat to one’s physical integrity; or
            witnessing an event that involves death, injury, or a threat to the physical
            integrity of another person; or learning about unexpected or violent death,
            serious harm, or threat of death or injury experienced by a family member or
            other close associate.

Brunell v. Wildwood Crest Police Dept., 176 N.J. 225, 240 (N.J. 2003) (quoting
American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 463 (4th ed. 2000)). “Although the symptoms may appear immediately after
[a] traumatic event, they also may remain dormant until at least six months or more have
passed, in which case the PTSD is specified as ‘with delayed onset.’” Id. at 243 (citing
Glenn R. Schiraldi, The Post-Traumatic Stress Disorder Sourcebook 6 (2000)).
                                                   3
Sky, a psychiatrist, who subsequently prescribed Lexapro and Depakote.3 Mr. Behan took seven

days’ sick leave “in an attempt to adjust to the medication[s],” but eventually discontinued their

use because he believed they “negatively affected” his work and personal life.4

       Mr. Behan “went for a while without treatment and things got worse.” He resumed

drinking in February or March 2011, and he experienced suicidal thoughts in April and May

2011. In February and March 2011, Mr. Behan met several times with therapist Dan Christy

through the EAP. Mr. Christy suggested that Mr. Behan consider a career change and

recommended he return to private mental health care.         In May 2011, Mr. Behan resumed

treatment with Ms. Strauss-Barrett and, in June 2011, Mr. Behan went on another medical leave.

Mr. Behan’s last day of work was June 4, 2011.

       On August 24, 2011, Mr. Behan filed an “application for disability retirement” alleging

PTSD from a work-related event, namely the May 2002 fire. In support of his application, Mr.

Behan submitted a letter from Dr. Laura Chackes, a psychologist, who evaluated Mr. Behan on

August 9, 2011 and concluded that he suffered “Anxiety Disorder Not Otherwise Specified” and

met “the majority of the diagnostic criteria for Posttraumatic Stress Disorder.” In the notes from

the initial evaluation, Dr. Chackes stated that Mr. Behan “never had prob[lem]s till March 30,

2008 – 1st panic attack” and he “didn’t connect [that panic attack] @ 1st to trauma.”

        FRS referred Mr. Behan to several healthcare providers for independent evaluations to

determine whether Mr. Behan was capable of continuing work as a firefighter.            At the FRS’s

request, Drs. Jeffrey Farb, Psy.D., Craig Vorhees, Ph.D., and Cynthia Byler, D.O. evaluated Mr.

3
  Dr. McCann also referred Mr. Behan to a wound-care specialist because he had been “picking
at” the skin on his arms and legs. Mr. Behan visited the wound-care specialist twice in December
2009.
4
  Mr. Behan did not wish to take anti-depressant medication because “it just didn’t seem like an
acceptable option to me to be all drugged up, you know, and numb going through life for
something that was not my fault.”
                                                 4
Behan in October 2010. In their reports, Drs. Vorhees and Byler noted that Mr. Behan’s

symptoms first presented in March 2008. Dr. Farb stated that Mr. Behan’s “psychosocial history

reveals a paucity of any significant psychopathology prior to 2007.”         All three healthcare

professionals concluded that Mr. Behan was permanently and totally disabled as a result of

PTSD, in combination with various other mental illnesses.5

       On November 7, 2011, the Board granted Mr. Behan ordinary disability retirement

benefits but denied his request for accidental disability benefits on the grounds that it was time-

barred. Mr. Behan appealed the denial of accidental disability benefits. In his letter of appeal,

he described his investigation of the May 2002 fire and stated, “[h]aving been on the scene and

personally witnessing and experiencing the events, I lived the events over and over again in my

mind through the audio recordings for weeks following the incident.” Mr. Behan explained that,

after the 2007 depositions concerning Mr. Morrison’s and Mr. Martin’s deaths, he “started

reliving the tragic incident in the form of nightmares and other side effects,” and “[s]hortly

thereafter, in March and April of 2008, I began experiencing anxiety and panic attacks as well as

other associated side effects.”

       The Board held an evidentiary hearing on October 8, 2012. At the hearing, Mr. Behan

described the May 2002 fire and his relationship with the deceased firefighters. He explained

that the May 2002 fire was “the first time I worked a fire scene where there was [sic] very

serious injuries to firefighters, much less firefighters that I had worked with . . . .” Mr. Behan

attended Mr. Morrison’s and Mr. Martin’s funerals and described the experience as “difficult, but

I wouldn’t classify it as traumatic.” Mr. Behan did not notice any changes in his behavior and

5
  Dr. Farb diagnosed Mr. Behan with PTSD and “Intermittent Panic Episodes.” Dr. Vorhees
diagnosed Mr. Behan with depressive disorder NOS, PTSD, alcoholism, and generalized anxiety
disorder with panic. Dr. Byler concluded that Mr. Behan suffered PTSD and obsessive
compulsive disorder.
                                                5
was able to perform his job until March 2008, stating that it was “a couple months after the[]

depositions [in 2007], that I began having the panic attacks, started waking up to the nightmares

of, unfortunately, the autopsy photos, the audio recordings.” After the panic attacks and phobias

began, Mr. Behan’s alcohol abuse “really exploded” and he became suicidal, antisocial, and

short-tempered.

       Mr. Behan testified that he decided to seek counseling when his former partner expressed

concern about the self-inflicted wounds and scars on Mr. Behan’s arms.6 At that time, Mr.

Behan “had no idea . . . it was work[-]related. I knew nothing about PTSD.” When Ms. Strauss-

Barrett informed Mr. Behan at their first session that he was suffering PTSD, “it was like

somebody turned on a light, like, well, that would kind of explain why all these things are

happening.”

       On cross-examination, Mr. Behan acknowledged that he began experiencing grief at the

firefighters’ funerals and stated that he and his co-workers felt a “sense of loss . . . unlike

anything any of us had felt before.” However, Mr. Behan did not “recall ever having any sort of

[mental health] problems until, you know, like 2008, the beginning of 2008. I guess I had

sufficiently put everything in the back of my mind, and then the depositions brought it all out.”

       On November 9, 2012, the Board issued findings of fact and conclusions of law

upholding its previous determination to deny Mr. Behan accidental disability retirement benefits

and award only ordinary disability retirement benefits. In its findings of fact, the Board stated

that Mr. Behan “did not sense anything out of the ordinary with his mental or physical well being

[sic] until March of 2008 – six years after the [May 2002] fire . . . .” Specifically, the Board

6
  Mr. Behan explained: “[M]y old partner, Joe Swayne, started noticing scars on my arms,
because I had been – I would lay at night scratching myself. They say I was hurting my – I was
causing pain physically to myself to divert myself from the mental pain. That is how the
therapist attributed it.”
                                                 6
noted that, in 2008, “[i]n addition to experiencing panic attacks and nightmares, [Mr. Behan]

began self-medicating with alcohol . . . .,” “became short-tempered, withdrew from social

contact, and developed road rage,” “picked at his skin,” and “developed suicidal ideation while

on the job . . . .”

        Despite these findings, the Board held that Mr. Behan’s application was time-barred

because he “did not timely file his application, as [his] injury was ascertainable on or about May

3, 2002.” The Board reasoned:

            [Mr. Behan] testified that the fire on May 3, 2002, was different than any other
            fire because it was the first time for him to investigate a fire where serious
            injuries occurred to firefighters and because the Department lost two
            employees, who happened to be his friends. [Mr. Behan] testified that he felt
            grief from the loss of his two colleagues, that everyone was consoling one
            another at their funeral and that tears were shed. [Mr. Behan] said that “the
            sense of loss was unlike anyone of us had felt before.”

        Mr. Behan filed a petition for review of the Board’s decision in the Circuit Court of the

City of St. Louis.      The trial court reviewed the record and concluded that the Board’s

determination that Mr. Behan’s injury was “capable of ascertainment” in May 2002 was

“unsupported by competent and substantial evidence upon the whole record.” The trial court

explained: “The Court does not believe that [Mr. Behan’s] grief following the deaths of his

friends is substantial evidence that his PTSD was ‘capable of ascertainment’ at that time.” Based

on its finding that Mr. Behan’s PTSD was capable of ascertainment in March 2008, the trial

court determined that Mr. Behan timely filed his application in August 2011. The trial court

therefore reversed and remanded the Board’s denial of accidental disability retirement benefits.

The FRS appeals.7




7
  As previously stated, Rule 84.05(e) required Mr. Behan to file the appellant’s brief because we
review the decision of the Board, not of the trial court.
                                                 7
                                        Standard of Review

         When reviewing an appeal from a trial court’s judgment addressing the decision of an

administrative agency, we review the decision of the administrative agency and not the judgment

of the trial court.     Beckemeyer v. Firemen’s Ret. Sys. of St. Louis, 424 S.W.3d 1, 4

(Mo.App.E.D. 2013). Nevertheless, in our mandate, we reverse, affirm, or otherwise act upon

the trial court’s judgment. Id.

         “[W]e must determine whether the agency’s findings are supported by competent and

substantial evidence on the record as a whole; whether the decision is arbitrary, capricious,

unreasonable or involves an abuse of discretion; or whether the decision is unauthorized by law.”

Sanders v. Firemen’s Ret. Sys. of St. Louis, 393 S.W.3d 135, 137 (Mo.App.E.D. 2013) (citing

Mo. Const. art. V, § 18); see also Mo. Rev. Stat. § 536.140.2.8 “We defer to the agency’s

determinations on the weight of the evidence and the credibility of the witnesses.” Beckemeyer,

424 S.W.3d at 4. Where, as here, the agency’s decision was based on the interpretation or

application of the law, we review its decision de novo. Id.

                                            Discussion

         In his sole point on appeal, Mr. Behan contends that the trial court did not err in ruling

that the Board’s decision to deny him accidental disability retirement benefits was “arbitrary,

capricious and unsupported by competent and substantial evidence upon the whole record.”

More specifically, Mr. Behan asserts that the trial court properly found that “his application for

disability retirement benefits was timely filed because his disability was not capable of

ascertainment until March 2008 and his application was filed within the 5-year statute of




8
    All statutory citations are to RSMo 2000 as supplemented unless otherwise indicated.
                                                 8
limitations period.” In response, the FRS argues that this court should affirm the Board’s

decision because Mr. Behan’s claim is barred by the applicable statute of limitations.

       Section 87.200 provides accidental disability retirement benefits to “any member who has

become totally and permanently incapacitated for duty as the natural and proximate result of an

accident occurring while in the actual performance of duty or exposure while in the actual

performance of duty in response to an emergency call . . . .” Mo. Rev. Stat. § 87.200. The

parties agree that a claim for accidental disability retirement is subject to the statute of

limitations set forth in Section 516.120.2, which applies to “an action upon a liability created by

a statute” and “provides for a five-year limitations period.” Hildebrand v. Firemen’s Ret. Sys. of

St. Louis, 527 F.2d 567, 569 (8th Cir. 1975).

       A claim for accidental disability retirement benefits does not accrue, and the limitations

period does not begin to run, “when the wrong is done. . ., but when the damage resulting

therefrom is sustained and is capable of ascertainment . . . .” Mo. Rev. Stat. § 516.100. The

Supreme Court has held that damages are “capable of ascertainment” when the “evidence was

such to place a reasonably prudent person on notice of a potentially actionable injury.” Powel

v. Chaminade College Preparatory, Inc., 197 S.W.3d 576, 582 (Mo. banc 2006) (emphasis in

original) (quoting Bus. Men’s Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 507 (Mo. banc

1999)). In other words, “the test is ‘when a reasonable person would have been put on notice

that an injury and substantial damages may have occurred and would have undertaken to

ascertain the extent of the damages.’” State ex rel. Marianist Province of U.S. v. Ross, 258

S.W.3d 809, 811 (Mo. banc 2008) (quoting Powel, 197 S.W.3d at 584). Importantly, “it is not

the existence of a nominal claim for damage, but the occurrence and capacity of ascertaining




                                                9
actual and substantial damage, that begins the running of the statute.” Powel, 197 S.W.3d at 584

(citing Bus. Men’s Assurance, 984 S.W.2d 501 at 508).

       The FRS contends that Mr. Behan’s injury was capable of ascertainment prior to March

2008 because his “symptoms commenced in 2002 and manifested 2005 through 2008.” In

support of its argument, the FRS cites Mr. Behan’s: testimony that he experienced grief at the

loss of co-workers “like nothing we ever felt before”; letter of appeal stating that he experienced

flashbacks in the weeks following the May 2002 fire; and medical records, which state that he

reported stress to his primary care physician as early as 2003. The FRS also points to evidence

that Mr. Behan’s alcohol abuse dated back to 2006 or 2007 and his marital problems commenced

in 2005.

       Contrary to the FRS’s argument, the symptoms cited by the FRS would not have placed a

reasonable person on “inquiry notice not just of the wrong and nominal immediate injury

therefrom, but also that substantial, non-transient damage had resulted and was capable of

ascertainment.” Powel, 197 S.W.3d at 578. Grief at the death of one’s friends and recurring

memories of a recent, fatal incident are typical reactions to a tragedy. A reasonable person in

Mr. Behan’s position would have no reason to ascertain the extent of damages because the

“shock and upset” he experienced in the weeks following the May 2002 fire did not evidence a

substantial and lasting, or potentially actionable, injury. See, e.g., Bus. Men’s Assur., 984

S.W.2d at 507 (chips of marble falling from building were not of such nature to alert the

plaintiffs to major flaws with the building’s design and installation); Gaydos v. Imhoff, 245

S.W.3d 303, 307 (Mo.App.W.D. 2008) (one board member’s “suspicion of inappropriate activity

[without] specific facts to indicate the possibility of financial loss” did not start the statute of

limitations running); but see State ex rel. Old Dominion Freight Line, Inc. v. Dally, 369 S.W.3d



                                                10
773, 779 (Mo.App.S.D. 2012) (statute of limitations began to run at the time of the accident and

not seven hours later when the plaintiff began experiencing pain, because his knowledge that the

collision caused his head “to be thrown forward in a whiplash-type motion” was sufficient to

place a reasonable person on notice of an actionable injury.).

       As to Mr. Behan’s alcohol abuse, stress, and marital problems, there was no evidence of a

causal connection between these issues and the May 2002 fire. If, in fact, these problems were

early symptoms of Mr. Behan’s PTSD, he was not aware and had no reason to know that the

May 2002 fire was the cause. See, e.g., Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436

(Mo. banc 1984) (although the plaintiff suffered shortness of breath for many years, his work-

related injury was not capable of ascertainment until he received the diagnosis of asbestosis).

       The FRS also contends that, because Mr. Behan “did not suffer from repressed memory

to excuse him from the application of the five-year statute of limitations” but rather “possessed

full recall of the 2002 fire,” his injury was capable of ascertainment in 2002. In support of its

assertion that “the statute of limitations will not forgive stale claims unless the victim suffered

repressed memory,” the FRS cites Marianist Province, 258 S.W.3d at 811 and Dempsey v.

Johnston, 299 S.W.3d 704 (Mo.App.E.D. 2009).

       In Marianist Province, the plaintiff filed an action in 2006 against the defendants, a

religious body and former school official, alleging that the school official physically and sexually

abused him in 1984 and 1985. Marianist Province, 258 S.W.3d at 809. The plaintiff admitted

that he always remembered the nonsexual details of the abuse (e.g., stripping, blindfolding, and

hyperventilating the plaintiff), but not the sexual details. Id. at 810. The Supreme Court

affirmed summary judgment for the defendants because the plaintiff’s claim was barred by the

statute of limitations. Id. at 811. The Court explained: “[e]ven though [the plaintiff] alleges he



                                                11
did not remember the sexual details of these incidents, the conduct that he always remembered

was sufficient to place a reasonably prudent person on notice of a potentially actionable injury.”

Id. (internal quotation omitted).

       Similarly, in Dempsey, the plaintiff filed a petition against a priest and the Roman

Catholic Church in 2004 based on sexual abuse that allegedly occurred in 1977 and 1978.

Dempsey, 299 S.W.3d at 705. The trial court granted summary judgment to the defendants on

the grounds that the plaintiff’s claims were barred by the statute of limitations. Id. On appeal,

the plaintiff argued that his cause of action did not accrue when he turned twenty-one years of

age because “even though he always remembered the abuse and knew it was wrong, he did not

know he had suffered substantial injuries as a result.” Id. at 706. This court affirmed summary

judgment for the defendants because the plaintiff’s “memories of the sexual abuse were

sufficient to place a reasonably prudent person on inquiry notice of a potentially actionable

injury.” Id. at 707; see also Graham v. McGrath, 243 S.W.3d 459, 463 (Mo.App.E.D. 2007) (the

plaintiff’s cause of action was capable of ascertainment when the plaintiff had “both knowledge

of the acts constituting the sexual abuse, and was at the very least beginning to understand that

he was a victim of sexual abuse.”).

       Neither Marianist Province nor Dempsey limited Powel’s “capable of ascertainment” test

to cases involving repressed memory of sexual abuse. Nor do those decisions support the FRS’s

assertion that Mr. Behan’s injury was immediately capable of ascertainment because he did not

repress his memory of the May 2002 fire. Rather, Marianist Province and Dempsey affirm

Powel’s holding that an injury is capable of ascertainment when the plaintiff has sufficient

knowledge of the acts constituting the wrong to place a reasonable person on notice of a

potentially actionable injury. Ross, 258 S.W.3d at 811; Dempsey, 299 S.W.3d at 707.



                                               12
       Finally, the FRS argues that Mr. Behan was not entitled to accidental disability retirement

because Section 87.200 “limit[s] recovery for service connected disability to a response to an

emergency call only” and did not “extend recovery. . . to an accumulation of events or

combination of factors as [Mr. Behan] suggests.”        However, Mr. Behan has consistently

attributed his PTSD to the May 2002 fire. In his application for disability retirement benefits,

Mr. Behan stated: “The date of my injury was: 05-03-2002.” Likewise in his petition for

review of the Board’s decision, Mr. Behan alleged that his injury occurred in May 2002 and his

“symptoms of PTSD manifested themselves after 2008 . . . .” Furthermore, as the FRS stated in

its response to Mr. Behan’s petition for review of the Board’s decision: “All the medical

evidence submitted by [Mr. Behan] as well as the evaluations performed at the request of the

FRS support the conclusion that the cause of [his] PTSD was the fire in May 2002. No medical

expert opined that the cause of [Mr. Behan’s] PTSD was the investigation he performed in 2007

and 2008.”

       The evidence in the record established that, at the funerals of Mr. Morrison and Mr.

Martin, Mr. Behan felt a sense of intense grief and, in the “weeks following the incident,” he

relived the tragedy “over and over again in [his] mind.” However, Mr. Behan was able to “put

everything in the back of [his] mind” until late-2007, when he prepared for and participated in a

deposition for the related wrongful death action. The undisputed evidence before the Board

established that Mr. Behan’s PTSD symptoms first presented in March 2008, when he began

suffering phobias, nightmares, and anxiety attacks.       Indeed, in its findings of fact and

conclusions of law, the Board found that Mr. Behan “did not sense anything out of the ordinary

with his mental or physical well being [sic] until March of 2008 – six years after the fire at the

Gravois Refrigeration Company.” Although the injury and nominal damages existed as early as



                                               13
May 2002, the statute of limitations did not begin running until March 2008, when Mr. Behan’s

symptoms suggested “substantial, non-transient damage.” Powel, 197 S.W.3d at 578. Because

Mr. Behan’s injury was not capable of ascertainment until March 2008, his August 2011 claim

for accidental disability benefits was timely.

                                                 Conclusion

       The judgment of the trial court reversing the Board’s determination is affirmed.




                                                      Patricia L. Cohen, Presiding Judge

Roy L. Richter, J., and
Robert M. Clayton III, J., concur.




                                                 14
