Luper v. Bd. of Trustees of Police & Fire Retirement System

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NOT DESIGNATED FOR PUBLICATION

No. 119,984

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JEFFREY L. LUPER,
Appellee,

v.

BOARD OF TRUSTEES OF THE
POLICE & FIRE RETIREMENT SYSTEM
OF WICHITA, KANSAS,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed August 23,
2019. Affirmed.

Brian K. McLeod, deputy city attorney, for appellant.

Donald N. Peterson, II, of Graybill & Hazlewood LLC, of Wichita, for appellee.

Before GREEN, P.J., STANDRIDGE, J., and MCANANY, S.J.

PER CURIAM: This is the second appeal to us regarding the dispute between
Jeffrey L. Luper and the Board of Trustees of the Police & Fire Retirement System of
Wichita (the Board) over his eligibility for disability benefits, which the Board has twice
denied. At this point, a brief history of the case is in order.

Luper had been a firefighter in the Wichita Fire Department since 1996, but he
ultimately was unable to perform his duties as a firefighter, and in 2011 he was
discharged. Over the years Luper had various medical problems, including chronic
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alcoholism, various psychiatric disorders such as depression and anxiety, and a fracture
of his spine, as well marital problems at home. But the condition he claimed caused him
to be permanently disabled and unable to perform his duties as a firefighter was
posttraumatic stress disorder (PTSD) brought on by his repeated exposure to traumatic
events during his service as a firefighter. The Board denied Luper's disability claim, and
his appeal of that decision ultimately found its way to our court.

On review we reversed the Board's initial denial of Luper's disability claim
because the Board failed to adequately consider the evidence of Luper's PTSD, which
need not be the sole cause of Luper's disability to qualify him for service-connected
disability benefits. We further noted that the Board failed to have a medical expert review
and opine on Luper's claim. Luper v. Board of Trustees of Police & Fire Retirement Bd.,
No. 108,379, 2013 WL 2395679, at *9 (Kan. App. 2013) (unpublished opinion).

On remand, the Board engaged a psychiatrist to meet with Luper, review his
medical records, and opine on the cause of Luper's disability. On further review of the
matter, including the psychiatrist's report, the Board again denied Luper's disability
claim.

On appeal the district court reversed the Board's decision, determining that Luper
was eligible for permanent service-connected disability benefits. The Board's appeal of
the district court's decision again brings the matter to us. Based on our independent
review of the record, we conclude that the Board erred in denying Luper's claim and the
district court did not err in so finding.

FACTUAL AND PROCEDURAL HISTORY

Let us fill in a few more details about Luper's claim. He became a firefighter in
1996 and rose through the ranks on the Wichita Fire Department during his 15-year
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career, eventually becoming a lieutenant in the Fire Investigation Unit. He had a plethora
of adverse medical and psychological conditions that preceded his discharge from the
department on September 16, 2011.

Luper had a long history of alcohol abuse that started when he was about 15 years
of age. But problems with his job performance at the fire department started in about
January 2010, after he had been a firefighter for about 14 years.

On January 3, 2010, a close friend of Luper's, Captain Urban Eck, died while
fighting a fire. Luper was asked to attend Eck's autopsy. This so upset Luper that the
request that he attend the autopsy was withdrawn.

Over his years as a firefighter Luper had experienced a number of traumatic
incidents. These included incidents in which he (1) administered cardio-pulmonary
resuscitation (CPR) to a child who drowned; (2) administered CPR to a child with a
debilitating disease; (3) assisted with the removal from wreckage of a body that felt
"like . . . jello" and the smell of "blood, guts, and beer remains distinct and memorable to
this day"; (4) looked into the eyes of a deceased young girl whose head was 180 degrees
from her body; (5) witnessed a young woman placed in a body bag who still had a pulse;
(6) administered CPR to a man long enough for his family to say goodbye; (7) engaged in
a string of exceptionally gruesome car wreck extractions; and (8) attended autopsies of
fire victims, including those of children. Luper later reported that he did not deal with his
feelings about these incidents at the time but denied they affected him and over time
pretended they never happened.

In his earlier years at the fire department, before 2006, Luper had taken leave from
work about 23 to 53 hours a year. Between 2006 and 2009 Luper's leave time increased
to over 200 hours a year.

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Later in January 2010, after Captain Eck's autopsy, Luper went to the hospital with
complaints of shortness of breath, pulmonary edema, and hypertension following a ski
trip to Colorado. His medical history included long-term alcohol abuse and depression
over the past 10 years. He was dismissed with a diagnosis of major depressive disorder
with anxiety.

In May 2010, Luper was admitted to the hospital with a reported history of chronic
alcohol abuse along with diabetes, high cholesterol, and possible PTSD. After his
hospital stay Luper started an outpatient alcohol treatment program. The program was not
successful. Three months later, on August 21, 2010, he was again at the hospital
emergency department where he reported that he was drinking a pint of vodka a day. The
following week he was admitted to the Hazelden Foundation Treatment Center in
Minnesota for five days of inpatient treatment.

By October 2010, Luper was contemplating suicide due to an extramarital affair,
other family problems, and his heavy drinking. Luper was eligible for help under the fire
department's Employee Assistance Program so he was referred to Dr. Ralph Bharati, a
psychiatrist who specializes in treating substance abuse. Dr. Bharati prescribed Antabuse
and ordered outpatient treatment. Ten days later, Luper again saw Dr. Bharati and
admitted he had relapsed into drinking. Dr. Bharati noted Luper's symptoms of PTSD and
opined that Luper, who was currently off work, should not return to any rescue work at
the fire department but could handle the job of a fire investigator.

Luper returned to work on December 6, 2010. The following month he completed
his outpatient treatment program and was discharged to aftercare.

Between January and August of 2010, Luper took over 400 hours of sick leave and
vacation time.

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Luper began drinking again. On February 21, 2011, Luper fell in the bathroom at
home and fractured his thoracic spine. He was treated with Oxycontin, a potentially
addictive opioid analgesic, which he continued to take for several months.

By June 2011, Luper's back problems persisted, he was still taking Oxycontin, he
had stopped attending AA meetings, and he was drinking again—currently 1.5 pints of
vodka a day. He was taken to Via Christi Hospital where he reported being despondent,
tired, and hopeless. He was not sleeping and was unable to return to work. He
complained of PTSD from his work as a firefighter. After leaving Via Christi he again
saw Dr. Bharati who noted Luper's ongoing problems with nightmares and flashbacks
which led to feelings of depression which led to more drinking.

In July 2011, Dr. Bharati referred Luper to a social worker in Dr. Bharati's office
for Luper's ongoing PTSD and addiction issues. That month Luper left the family home
and moved in with his parents.

In August 2011, Luper applied for service-related disability benefits based on his
PTSD which, he claimed, rendered him incapable of working for the fire department. He
contended that his PTSD was brought on by his exposure to the traumatic incidents noted
earlier which he experienced over his 15-year career as a firefighter, culminating in and
finally triggered by the death of Captain Eck. Luper asserted that this latest incident
caused him to "physically and emotionally" collapse and that he "has not been the same
since." He stated that with the death of Captain Eck "[i]t was as if the floodgates were
opened and all the bad thoughts, images, and memories came pouring back into my life."

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Dr. Bharati provided his report to the Board on August 17, 2011, in which he
stated:

"I do think he meets criteria for posttraumatic stress disorder because he suffered a lot of
traumatic events while he was working as a fireman . . . and this caused a lot of anxiety
and depression in him and resulted in self-medicating and alcoholism. . . . [H]e has been
in our intensive outpatient treatment program until today. However, during all this time
he continues to relapse in drinking and he has had three or more hospitalizations . . . .
. . . .
"I think the cause of disability is posttraumatic stress disorder because of
working as a fireman and doing all these dangerous behaviors . . . . That is the cause of
his disability. . . . [H]e is unable to function in any occupation. . . . [I]t is a chronic and
delayed onset . . . . [A]t this time, I think his condition is quite permanent and is likely not
to make enough progress for him to return to any gainful employment. . . .
". . . [H]is diagnosis is posttraumatic stress disorder and alcohol dependence.
These are pretty much the cause of his disability and I think his posttraumatic stress
disorder is a permanent one."

Luper was also treated by Dr. Angela Moore, his primary care physician for about
eight months. She also provided a report to the Board in August 2011, in which she
stated:

"Because of his history of psychiatric treatment with Dr. Bharati as well as
several stays in inpatient detox, he does not appear to be recovered. In my professional
opinion, based on my observations, evaluations and review of records from the hospital
and Dr. Bharati, he has the diagnosis of alcoholism, depression with anxiety and
posttraumatic stress disorder. He is permanently disabled from the career of firefighting
and I believe he would never be able to return to his career."

Luper was terminated from the fire department on September 16, 2011. In spite of
almost a year of treatment and being reassigned to other duties where he could avoid
exposure to incidents like those which he claimed triggered his PTSD, Luper's condition
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declined to the point that the fire chief certified to the Board that he did not recommend
that Luper continue to work for the department in any capacity.

The City of Wichita had established a retirement system for its police and
firefighters in Charter Ordinance 215, Code of Ordinances of the City of Wichita. Aside
from the typical age-related retirement, the ordinance provided for service-connected
disability benefits based on the following:

"SECTION 19. Permanent Service-Connected Disability Benefits. Any Member,
who shall, while engaged in the performance of his or her duties, be permanently injured
or disabled, other than as the result of an occupational disease, and upon an examination
by a physician or physicians appointed by the Board of Trustees, be found to be
physically or mentally disabled as a result of such permanent Disability or injury so as to
render him incapable to perform the duties of the position held by the Member at date of
Disability, shall be entitled to be retired, and the Board of Trustees shall thereupon order
such Member's retirement and upon being retired, the Member shall be paid a benefit
equal to seventy-five percent (75%) of the Salary in effect on the date when Salary
payments ceased. The benefit shall be established according to the charter ordinance that
is in effect at the time Salary payments ceased."

Section 3 included the following definitions:

"'Act of Duty' means an act performed by a Member within the scope of
occupational duties inherently involving special risks not generally assumed by a citizen
in the ordinary walks of life, for the purpose of protecting life or property, including any
act of heroism as a Member.
. . . .
"'Disability' means total inability to perform permanently the duties of the
position held by the Member at date of Disability due to a physical or mental incapacity
resulting from external force or violence or disease.
. . . .
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"'Service-Connected Disability' means any physical or mental incapacity
resulting from external force, violence, or occupational disease occasioned by an Act of
Duty as a Police or Fire Officer, imposed by the ordinance or rules and regulations of the
City, or any other Disability, which may be directly attributable to the performance of an
Act of Duty."

The Board made its ruling on Luper's application for disability benefits in
November 2011.

The Board found: (1) Dr. Bharati opined that Luper's work as a fireman caused
his PTSD and his disability, but Dr. Moore's letter did not link Luper's condition and
disability to the performance of his duties as a firefighter; (2) Luper's medical records
showed that he had been abusing alcohol since he was a teen, before he came to work for
the fire department; and (3) Luper's sick leave usage spiked in 2005 and remained
consistently high for several years before the autopsy incident, which Luper identified as
the key event precipitating his PTSD. The Board denied Luper's claim, stating:

"On the facts before it, the Board is unable to reasonably conclude that the
applicant's condition, including any presently existing condition of PTSD, was actually
caused by the applicant's job activities as opposed to the emotional abuse and family
problems he has suffered, his long history of alcohol abuse, and the medical and family
problems he has developed secondary to his longstanding alcohol abuse and
dependency."

Referring to § 19 of Charter Ordinance 215, the Board concluded that Luper did
not prove that his incapacity was a

"'physical or mental incapacity resulting from external force, violence, or occupational
disease occasioned by an Act of Duty as a Police or Fire Officer, imposed by the
ordinance or rules and regulations of the City, or any other Disability, which may be
directly attributable to the performance of an Act of Duty.'"
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Luper appealed the Board's decision to the district court, which affirmed the
Board. Luper appealed the district court's ruling, and another panel of this court heard
Luper's appeal. See Luper, 2013 WL 2395679.

There, our court held that the Board's decision was arbitrary and capricious in light
of the "uncontradicted medical opinion of Dr. Bharati that Luper had PTSD caused by
traumatic events he experienced as a firefighter" and the "wholly irrelevant issue" of what
caused Luper's alcoholism was not an appropriate reason to reject the opinion of Dr.
Bharati. 2013 WL 2395679, at *6. The panel stated: "Before acting on Luper's claim, the
Board had the duty to seek further information on the nature of PTSD, its cause and
symptoms, and the temporal relationship between traumatic events and its onset." 2013
WL 2395679, at *9. The panel concluded by holding:

"Because the Board arbitrarily and capriciously rejected the expert medical
opinion of Dr. Bharati without seeking further medical information on Luper's disability
and its cause and without exercising the option of obtaining an independent medical
examination of Luper to determine his condition and its cause, we must reverse and
remand this case to the district court with directions that it remand Luper's application to
the Board for further proceedings consistent with this opinion." 2013 WL 2395679, at *9.

On remand, the Board retained Dr. Jan Campbell for an independent medical
examination. The Board requested that her report include

"the nature and causes of Mr. Luper's condition, whether or not you believe the causes of
Mr. Luper's condition are work-related, whether or not such condition is permanent and
the degree to which his condition impacts his ability to perform the duties of a Fire
Prevention Inspector I, the job duties of which are enclosed. To the extent possible,
please relate your findings to both Mr. Luper's current condition and his condition at its
original presentation for the Board's consideration. Please include in that report your
concurrence with or distinction from the other medical providers Mr. Luper has seen,
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along with any other information you deem pertinent. Additionally, we would also like
you specifically comment on the opinion of Dr. Bharati's contained in his letter, dated
August 17, 2011, and whether and to what extend you agree or disagree with it."

In September 2014, Dr. Campbell provided her report. In summary, she agreed
with Dr. Bharati that Luper meets the criteria for PTSD, that Luper's PTSD is attributable
to work-related traumas, and that Luper should not return to work as a firefighter until
after he has completed treatment and can demonstrate that his PTSD symptoms have
subsided. Dr. Campbell could not determine whether Luper's PTSD was permanent
because there was an "absence of aggressive treatment" for it. She concluded that
"Luper's ability to function in any capacity is impaired by his alcohol dependence, which
is his primary diagnosis." But she emphasized that Luper's alcoholism and PTSD are
intertwined, and his alcohol dependence made him predisposed to developing PTSD from
incidents at work.

The Board requested additional information from Dr. Bharati on remand as well.
Dr. Bharati interviewed Luper and provided a letter to the Board in March 2015 in which
he reaffirmed that Luper had PTSD arising from work-related traumas, that his PTSD
was a delayed onset disorder, that Luper's ongoing treatment for PTSD was appropriate,
and that Luper's PTSD was a permanent condition. Dr. Bharati concluded that Luper
should not return to work as a firefighter because "[h]e will relapse into drinking or
become suicidal" or have "more exacerbated PTSD symptoms."

Jennifer Hecht, one of Luper's counselors at Prairie View Mental Healthcare
Center, had previously provided similar concerns as Dr. Bharati to the Board. In
November 2014, the counselor stated that Luper was working on both his PTSD and
alcohol dependency and that they were "very much interrelated" as Luper had used
alcohol to cope both with traumas in his past and traumas he experienced as a firefighter.
She also noted that
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"[w]ith Jeffrey's ongoing symptoms, returning to work as a fire fighter would most likely
increase his symptoms and decrease his ability to function on a daily basis. Further, even
without ongoing symptoms, returning to work as a fire fighter and having repeated
exposure to traumas would make Jeffrey very vulnerable for recurring PTSD symptoms.
Therefore, I could not recommend that he return to work as a firefighter at any time in the
future."

On March 23, 2016, the Board denied Luper's claim after finding:

"The medical evidence establishes that the applicant's exposure to any past traumatic
events experienced as Acts of Duty only lead to PTSD symptoms when he chose to abuse
alcohol. It is unquestioned that the applicant has been a chronic abuser of alcohol from
the age of 15; his alcoholism was not caused by any Act of Duty. The medical records do
not establish any Act of Duty trigger that instigates relapses from alcohol treatment, nor
has applicant made that claim. Those instances with any recorded cause are tied to
incidents in the applicant's personal life. While successfully under Dr. Bharati's
treatment, the applicant even described experiencing minor PTSD symptoms which he
said would not be a problem for him at work."

The Board concluded that

"the incapacity associated with the present condition of the applicant has not been shown
to be a 'physical or mental incapacity resulting from external force, violence, or
occupational disease occasioned by an Act of Duty as a Police or Fire Officer, imposed
by the ordinance or rules and regulations of the City, or any other Disability, which may
be directly attributable to the performance of an Act of Duty.'"

Luper appealed to the district court, which reversed the Board's decision, and the
Board appealed. As we will briefly discuss, our review of the Board's decision is de novo
and thus not controlled or bound in any way by what the district court found or
concluded. Nevertheless, to provide context for the Board's claims on appeal, it is
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worthwhile to set forth the district court's analysis which, as shall be seen, is for the most
part consistent with our own analysis of the Board's action.

The district court reversed the Board's decision on two bases.

First, the district court determined that the Board did not evaluate Luper's claim
consistent with the mandate from this court. The district court noted that under Luper,
2013 WL 2395679, Luper's PTSD need not be the sole cause of a service-connected
disability; rather, the disabling condition need only be "directly attributable to the
performance of an Act of Duty." Thus, "[t]he relevant question for the Board is not
whether Luper's alcoholism impacted his work. Rather, the relevant question is whether
Luper's PTSD constituted a mental incapacity that rendered him permanently unable to
perform the duties of his job." The district court stated that "the Board was directed to
focus its attention on Luper's PSTD to determine whether that condition rendered him
eligible for disability benefits under Ordinance No. 215." But "[d]espite this direction, the
Board in its second denial again turns its focus primarily to Luper's alcoholism."

The district court concluded:

"Dr. Campbell's review of Luper's medical records and history established that Luper
began to experience symptoms of PTSD early in his career and that he experienced a
gradual escalation of anxiety and depression as be had increased his exposure to
traumatic events; that Luper suffered from sleep disruption and recurrent nightmares of
trauma scenes as well as intrusive thoughts of trauma events; that Luper felt guilt and
shame due to his inability to rescue people; that Luper suffered from apprehension and
fear when he heard alarms indicating trauma calls; that Luper began suffering the onset of
PTSD symptoms at least by January of 2010, and that the symptoms persisted for longer
than six months; that Luper's PTSD symptoms interfered with his ability to function as an
employee of the fire department; and, significantly, that Luper's PTSD symptoms
persisted during periods of confirmed abstinence from alcohol.

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"Despite this documentation in Luper's medical records, Dr. Campbell then
committed the same analytical error that the Board did in its first denial of Luper's
disability claim—she states that PTSD 'is not his primary diagnosis or the source of his
disability.' Again, the question is not whether PTSD is Luper's primary diagnosis, or the
source of his disability. The question is whether Luper's PTSD is a disabling condition
directly attributable to the performance of an Act of Duty."

Second, the district court found that the Board's denial of Luper's disability
benefits was not supported by substantial competent evidence. The district court held that
the Board "cherry pick[ed]" portions of Dr. Campbell's report to reach the outcome it
desired despite the "overwhelming evidence in the medical records that Luper suffers
from PTSD." The district court, in part, provided the following examples:

"The Board obviously did not view favorably the opinions of Dr. Bharati.
However, its criticism of Dr. Bharati's opinions are one sided. For example, the Board
was critical of Dr. Bharati's diagnosis of Luper's PTSD because it was based on Luper's
subjective reports of bad dreams and related symptoms. But the Board accepted Dr.
Campbell's conclusion that Luper suffered from PTSD, despite the fact that Dr.
Campbell's diagnosis relied upon the same subjective reports from Luper, and even relied
upon medical records generated by Dr. Bharati in his treatment of Luper. The Board was
critical of Dr. Bharati for failing to make the connection that Luper's PTSD symptoms
'occur for the applicant in association with incidents of alcohol abuse, but not with
traumatic or other triggering events absent alcohol abuse.' But the Board ignored the fact
that Dr. Campbell likewise found that Luper's PTSD symptoms persisted during periods
of confirmed abstinence from alcohol, suggesting that the physiological effects of alcohol
were not responsible for the various symptoms of PTSD."

The district court concluded that there was overwhelming evidence in the medical
records that Luper suffers from PTSD caused by his experiences on the job as a
firefighter. Moreover, it was Dr. Bharati's opinion that Luper's PTSD prevented him from
performing his duties as a firefighter, and Dr. Campbell "simply did not address this
question." Dr. Bharati opined that Luper's PTSD was a permanent condition, but Dr.
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Campbell had no opinion on the matter because she did not think a conclusion could be
made without first having Luper engage in "aggressive treatment" for his PTSD. The
district court concluded:

"What is uncontroverted is that Luper's PTSD symptoms manifested in 2010, and
were still present when Dr. Campbell interviewed him in 2014. Despite pharmacological
treatment, the symptoms of PTSD have not abated. According to Dr. Bharati, there is no
treatment for PTSD that was very established. Luper's PTSD has persisted for four years
despite the medication Luper has taken to remediate the symptoms. Dr. Bharati stated
that Luper's PTSD was a chronic, permanent condition. The records from Behavioral
Health & Addiction Services state that Luper was expected to have to treat his PTSD for
the rest of his life. Jennifer Hecht was of the opinion that Luper would always be
vulnerable to a reoccurrence of PTSD if he was exposed to future traumatic events. And
while there is some evidence in the record that EMDR therapy [eye movement
desensitization therapy] would help alleviate Luper's current PTSD symptoms, there is no
evidence in the record that such therapy would inoculate Luper from a reoccurrence of
PTSD if he was exposed to future traumatic events, or that any of Luper's mental health
care providers (with the exception of the Hazelden Foundation, an out of state addiction
treatment center) even prescribed this treatment. The Board simply cannot disregard this
evidence in reliance on Dr. Campbell, who had stated that she was unable to determine
whether Luper's PTSD was a permanent condition. Decisions that are unreasonable,
without foundation in fact, and not supported by substantial evidence are arbitrary and
capricious. Denning v. Johnson County, Sheriff's Civil Service Bd., 46 Kan. App. 2d 688,
701, 266 P.3d 557 (2011), affirmed 299 Kan. 1070 (2014)."

The district court ultimately held:

"It is understandable that the Board is reluctant to approve disability benefits for
an alcoholic. But there is no evidence in the record that alcoholism causes PTSD—rather,
the conditions are interrelated. And because the Ordinance that defines Luper's eligibility
for disability benefits is structured such that PTSD does not have to be the sole cause of
Luper's disability, Luper is eligible for disability benefits despite the fact that he is an
alcoholic."
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ANALYSIS

This brings us to the Board's appeal, which is under K.S.A. 60-2101(d), which
"confers jurisdiction on a district court to review the action of a political subdivision
exercising 'judicial or quasi-judicial functions.'" Robinson v. City of Wichita Employees'
Retirement Bd. of Trustees, 291 Kan. 266, 270, 241 P.3d 15 (2010). In appeals under
K.S.A. 60-2101(d), the district court's task is to determine whether the Board's "decision
was within its scope of authority, was substantially supported by evidence, or was
fraudulent, arbitrary, or capricious." 291 Kan. at 270. On further review by our court, we
review the Board's decision de novo using the same grounds as the district court was
directed to apply in its initial review. See Butler v. U.S.D. No. 440, 244 Kan. 458, 464,
769 P.2d 651 (1989).

The Board's Claims

The Board claims that the district court erred in three aspects: (1) in finding that
the Board did not comply with our court's directions on remand, (2) in reversing the
Board when there was no external force or violence upon Luper that caused his disability,
and (3) in finding that the Board's decision was not supported by substantial competent
evidence and was arbitrary or capricious. In the alternative, the Board argues that if the
district court did not err in these respects, it assessed the incorrect effective date of
disability.

● Compliance with the Court of Appeals' Directions on Remand

The Board's complaint that the district court erred in finding that the Board did not
comply with our court's directions on remand raises a question of law over which our
review is unlimited. Leffel v. City of Mission Hills, 47 Kan. App. 2d 8, 15-16, 270 P.3d 1
16
(2011). But, as we noted earlier, because in our review we examine the Board's decision
anew using the same grounds as the district court was directed to apply in its initial
review, resolution of this issue one way or another does not affect the ultimate outcome
of this appeal. Nevertheless, for the sake of completeness, we will briefly address this
issue.

In the initial appeal, we directed the Board to seek further information on the
nature of Luper's PTSD, its cause and symptoms, and the temporal relationship between
Luper's traumatic events and the onset of his PTSD. Our court stated:

"The Board acknowledges that a disability cause need not be the sole cause. We
find no expert medical opinion evidence that Luper does not have PTSD, as Drs. Bharati
and Moore stated; nor do we find expert medical opinion evidence that Luper's PTSD
was caused by his alcoholism and not his exposure to traumatic events at work. Yet the
focus of the Board in its analysis is exclusively on Luper's alcoholism, except for the two
references to the expert medical opinions of Luper's treating doctors, which the Board
rejected.

"With the growing concern for the mental conditions of our military personnel
returning from the stress and trauma of foreign wars, PTSD has become a relatively
familiar concept to many Americans. But our common lay understanding of this disorder
is neither deep nor precise. In his letter opinion, Dr. Bharati says that Luper meets the
criteria for PTSD but does not specify those criteria. He mentions in passing that PTSD is
'chronic and delayed onset' but does not expand on those concepts. The Board noted that
Dr. Moore also found that Luper 'is permanently disabled as a result of alcoholism,
depression with anxiety and PTSD.' While a member of the screening committee
apparently made some inquiry of Dr. Moore, the Board made no inquiry of Dr. Moore as
to the cause of Luper's PTSD.

"Before acting on Luper's claim, the Board had the duty to seek further
information on the nature of PTSD, its cause and symptoms, and the temporal
relationship between traumatic events and its onset. Having rejected the opinion of Dr.
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Bharati based on his analysis of the cause of Luper's alcoholism, not on Dr. Bharati's
analysis of the cause of Luper's PTSD, the Board needed to question Dr. Bharati about
his findings, to seek out an independent psychiatric evaluation and report of Luper's
disability claim, or both.

"Because the Board arbitrarily and capriciously rejected the expert medical
opinion of Dr. Bharati without seeking further medical information on Luper's disability
and its cause and without exercising the option of obtaining an independent medical
examination of Luper to determine his condition and its cause, we must reverse and
remand this case to the district court with directions that it remand Luper's application to
the Board for further proceedings consistent with this opinion.

"Reversed and remanded with directions." Luper, 2013 WL 2395679, at *8-9.

On remand, the Board obtained additional medical records from Luper and sought
out Dr. Campbell, an experienced psychiatrist with experience in the areas of PTSD and
alcoholism. Dr. Campbell provided information to the Board regarding Luper's PTSD. In
addition, the Board presented specific follow-up questions to Dr. Bharati and allowed Dr.
Bharati to review and address Dr. Campbell's report. We are satisfied that the Board
complied with our court's mandate on remand.

● External Force or Violence as the Cause of Luper's Disability

Next, the Board argues that although all of the events that caused Luper's PTSD
were "emotionally troubling," none involved any external force or violence directed at
Luper or in his presence which is required under Ordinance No. 215 in order to constitute
a "service-connected disability."

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Section 3 of Ordinance No. 215 provides:

"'Service-Connected Disability' means any physical or mental incapacity resulting from
external force, violence, or occupational disease occasioned by an Act of Duty as a Police
or Fire Officer, imposed by the ordinance or rules and regulations of the City, or any
other Disability, which may be directly attributable to the performance of an Act of
Duty."

This raises what appears to be a new issue of law that was not raised by the Board in
denying Luper's application. The Board concedes in its appellate brief before us that "the
Board's discussion did not specifically focus on this issue." To the extent of any
consideration we give to this new issue, our review is unlimited. See State ex rel. Schmidt
v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016).

First, it does not appear that the Board's decision was based on the fact that there
had been no physical impact on Luper's body or physical injury to Luper in the course of
the traumatic events that preceded his PTSD symptoms. We note that nowhere in the
Board's analysis of its findings of fact does the Board refer to any finding that in order to
establish a service-connected disability under Charter Ordinance 215, the disability must
arise from a physical impact on the applicant's body while serving as a firefighter.

The Board made the following conclusions in denying Luper's application:

"The Board finds the evidence before it does not establish Post-Traumatic Stress
Disorder as a service-connected disability occasioned by an Act of Duty under Charter
Ordinance 215. The medical evidence establishes that the applicant's exposure to any past
traumatic events experienced as Acts of Duty only lead to PTSD symptoms when he
chose to abuse alcohol. It is unquestioned that the applicant has been a chronic abuser of
alcohol from the age of 15; his alcoholism was not caused by any Act of Duty. . . .

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"[T]he incapacity associated with the present condition of the applicant has not
been shown to be a 'physical or mental incapacity resulting from external force, violence,
or occupational disease occasioned by an Act of Duty as a Police or Fire Officer.'"

We read this not as a conclusion that PTSD cannot qualify as a service connected
disability because Luper did not experience any physical impact on his body in the
incidents which he claimed brought about his PTSD, but rather as a conclusion by the
Board that the cause of any present disability is not connected to Luper's service as a
firefighter but to his alcohol abuse which predates his employment at the fire department.
That is, in discussing "the incapacity associated with the present condition of the
applicant," the "incapacity" the Board was referring to was Luper's chronic alcoholism,
not his PTSD.

The Board is simply attempting to justify its ruling by bootstrapping into the
record a finding it did not make and a conclusion it did not draw in denying Luper's
application for benefits before this matter was appealed.

By way of this argument, the Board seeks to bind us to decisions in tort and
workers compensation cases which require a physical impact on the plaintiff/claimant or
a relatively immediate physical injury to the plaintiff/claimant after the incident to
support a cognizable claim. But this is neither a tort nor a workers compensation case.
The issue is whether Luper has a contractual right to service-connected disability benefits
under the disability plan adopted by the City of Wichita for members of the police and
fire departments.

Once again, Section 3 of Ordinance No. 215 provides:

"'Service-Connected Disability' means any physical or mental incapacity
resulting from external force, violence, or occupational disease occasioned by an Act of
Duty as a Police or Fire Officer, imposed by the ordinance or rules and regulations of the
20
City, or any other Disability, which may be directly attributable to the performance of an
Act of Duty." (Emphasis added.)

A service-connected disability under the ordinance requires either a physical or
mental incapacity resulting from external force or violence while the applicant is in the
line of duty. The ordinance does not require a physical injury, merely a physical or
mental incapacity. One can suffer a mental incapacity without a physical injury.

Further, we read the "occasioned by" language in the ordinance as creating a nexus
between the force or violence and the firefighter's act of duty, which in the incidents
listed by Luper consisted of the nexus between the violent, traumatic, life-threatening
episodes Luper confronted as a firefighter and the extraordinary lifesaving efforts he
made in the line of duty. Those incidents

"included incidents in which he administered cardio-pulmonary resuscitation (CPR) to a
child who drowned, administered CPR to a child with a debilitating disease, administered
CPR to a man long enough for his family to say goodbye, engaged in car wreck
extractions, saw a woman placed in a body bag who still had a pulse, and attended
autopsies of fire victims." Luper, 2013 WL 2395679, at *2.

Finally, while the ordinance does require "external force or violence," there is no
clear requirement that the external force or violence be directed at the firefighter acting in
the line of duty. If there were such a requirement, we would expect there to be a
requirement of a physical injury to the firefighter. But in order to come within the
purview of the ordinance, the firefighter need only experience a mental incapacity as a
result of being confronted by a violent situation experienced in the line of duty. Such was
Luper's situation.

We conclude that the Board's new rationale for upholding its ruling does not bar
Luper's claim.
21

● Evidence Supporting the Board's Denial

Finally, the Board argues that its denial of Luper's disability application was not
arbitrary or capricious but rather was based on substantial evidence. In our de novo
review our task is to determine whether the "Board's decision was within its scope of
authority, was substantially supported by evidence, or was fraudulent, arbitrary, or
capricious." Robinson, 291 Kan. at 270.

In the first appeal of this case our court held that "under the City's ordinance, a
condition such as alcoholism or PTSD need not be the sole cause of a service-connected
disability," and the Board previously conceded that Luper's "disability cause need not be
the sole cause." Luper, 2013 WL 2395679, at *4, 8. Moreover, we noted: "Luper does
not claim he is disabled from alcoholism brought on by his exposure to traumatic events
as a firefighter. He claims he suffers from PTSD. Thus, the issue is whether Luper has
work-induced PTSD, not work-induced alcohol dependency." 2013 WL 2395679, at *6.

Thus, as previously held, what the Board had to determine was (1) whether Luper
has PTSD related to acts of duty as a firefighter which renders him incapable of
performing his duties as a firefighter, and if so, (2) whether Luper's PTSD is permanent.

On remand, the Board provided the following analysis of its findings of fact:

"In order to distinguish between these medical opinions, the Board looked at the
professional rigor they each demonstrate. Both doctors had available the same medical
records for review. Dr. Campbell's opinion accounts for the applicant's history of alcohol
abuse dating back to the age of 15 and what the applicant describes as alcohol
consumption at a consistent, frequent and intense level. Dr. Bharati acknowledges that
history, but asserts without support in the record a significant increase in the applicant's
alcohol consumption when he is confronted with traumatic events at work. Dr. Campbell
22
describes from her clinical experience how alcohol abuse can be the trigger for PTSD
symptoms, while Dr. Bharati states that exposure to trauma causes PTSD symptoms, and
then assumes, again without support in the record, that PTSD symptoms greatly
exacerbated the applicant's problem with alcohol abuse. This assumption runs contrary to
Dr. Bharati's own course of treatment results. Dr. Bharati's records demonstrate that while
under his care in a successful alcohol treatment program, the applicant's PTSD symptoms
were greatly reduced. A similar result occurred during the applicant's inpatient treatment
at Hazelden. During the course of that six week, enforced sobriety, PTSD was dropped
from the applicant's diagnosis, and the treating psychiatrist affirmatively stated that the
applicant was leaving Hazelden with no mental health issues. During two different, later
periods of extended sobriety, the applicant confirmed that PTSD symptoms were not a
problem. See findings of fact at paragraphs 48-51 and 93.

"Dr. Campbell used extensive records review, psychological testing, and a
clinical interview as the basis of her opinion, and provided substantial documentation of
the information leading to her conclusion. Her conclusion was that PTSD, although
present, was not the primary diagnosis appropriate for the applicant, and more
importantly was not the source of his disability. She also found that the applicant's past
treatment episodes have focused on alcohol dependence, with very minimal treatment for
PTSD. The limited PTSD treatment given at Hazelden was effective, by the applicant's
own account, but that EMDR therapy from a psychiatrist has never again been utilized.
The applicant's choice not to seek EMDR treatments for PTSD runs counter to both his
own earlier positive experience and the express recommendation of Dr. Campbell.
Instead, the applicant has sought pharmacological treatment from a nurse practitioner.
The applicant's wife has described this treatment as adversely affecting the applicant's
cognition. Dr. Campbell stated that the minimal (and later detrimental) treatment for
PTSD makes it impossible to determine whether the applicant is disabled by PTSD, nor
whether, if so, such a condition is permanent.

"Dr. Bharati expressly stated that his diagnosis of PTSD as permanently and
totally disabling for the applicant was substantiated 'in the history'. The support he
provides is the applicant's subjective account of dreams and related symptoms, and Dr.
Bharati's general recollection of the association of those symptoms with triggering
events. Dr. Bharati does not make the connection that such symptoms occur for the
23
applicant in association with incidents of alcohol abuse, but not with traumatic or other
triggering events absent alcohol abuse. Dr. Bharati did not describe using the
psychological testing data available to him in the medical records. Most importantly, Dr.
Bharati came to his initial conclusion on August 17, 2012 based on the applicant's
subjective accounts of mental symptoms, less than three weeks after concluding in his
own notes that he did not trust the applicant. See finding of fact paragraph 71. There was
no ensuing treatment session to alter that opinion of veracity. Indeed, the applicant
skipped a scheduled session, attended only by his wife, and never again saw Dr. Bharati
for treatment. In Dr. Bharati's later opinion of March 5, 2015 this inconsistency is still
unresolved."

There is no question that Luper suffers from PTSD arising from events he
experienced as a firefighter. Both Drs. Bharati and Campbell agree with this diagnosis.
Dr. Campbell, the psychiatrist retained by the Board, reviewed Luper's medical records
and interviewed Luper. She concluded that Luper began to experience symptoms of
PTSD early in his career as a firefighter and that he experienced a gradual escalation of
anxiety and depression as he had increased exposure to traumatic events associated with
his duties as a firefighter. She reported that Luper suffered from nightmares of trauma
scenes, sleep deprivation, intrusive thoughts of trauma scenes, guilt and shame that he
could not rescue individuals, and apprehension and fear when he would receive trauma
calls. She determined that Luper began suffering the onset of PTSD symptoms at least by
January 2010, and that the PTSD symptoms persisted for longer than six months. She
concluded that Luper's PTSD symptoms interfered with his ability to perform his duties
as a firefighter. Finally, and significantly, she confirmed that Luper's symptoms, although
reduced, persisted during periods of confirmed abstinence from alcohol. She stated
"[a]lthough Luper had been alcohol-dependent throughout the course of developing
PTSD, some symptoms persisted during the periods of confirmed abstinence and thus the
psychological effects of alcohol could not be responsible for the various symptoms and
disturbances described in Luper's records." (Emphasis added.)

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Dr. Campbell concluded that PTSD "is not [Luper's] primary diagnosis or the
source of his disability." But, as shown earlier, PTSD need not be the sole cause of
Luper's disability, and Luper is not claiming disability based on his alcoholism. He is
claiming a disability based on his PTSD, which Dr. Campbell has confirmed persists both
during times of alcohol use and to a lesser extent during times of confirmed sobriety.

Moreover, Luper's PTSD is not a product of his alcohol abuse. Dr. Campbell's
diagnosis of PTSD under the current version of the Diagnostic Statistical Manual, the
DSM-5, requires a finding that the patient's symptoms are impairing their social or
occupational function (category G) and that those symptoms are not caused by substance
abuse (category H).

Drs. Bharati and Campbell both agree that Luper has PTSD from acts of duty. Dr.
Campbell was unable to reach an opinion as to the severity of Luper's PTSD because, in
her opinion, the majority of Luper's hospitalizations and treatment focused on addressing
his alcoholism—not his PTSD—and it was not possible for her to determine Luper's
prognosis "[i]n the absence of aggressive treatment." Yet Dr. Bharati had treated Luper
and was of the opinion that Luper's PTSD was a chronic condition that affected his ability
to function as a firefighter and that his PTSD was able to be treated pharmacologically. In
essence, with treatment, Luper's PTSD could be managed but his underlying condition
will never go away.

While the Board was critical of Dr. Bharati's PTSD diagnosis based on Luper's
self-reporting, Dr. Campbell made the same diagnosis based on Luper's self-reporting.
The Board was also critical of Dr. Bharati's failure to make the connection that Luper's
PTSD symptoms "occur for the applicant in association with incidents of alcohol abuse,
but not with traumatic or other triggering events absent alcohol abuse." But Dr. Campbell
also found that Luper's PTSD symptoms persisted during periods of confirmed abstinence
25
from alcohol, suggesting that the physiological effects of alcohol were not the
precipitating cause of Luper's PTSD symptoms.

While Dr. Campbell did not specifically address whether Luper's PTSD
completely prevents him from performing his duties as a firefighter, Dr. Bharati's opinion
is that it does, and the record contains no contrary evidence. This conclusion is also
supported by one of Luper's counselors. Dr. Campbell opines that Luper cannot function
at the fire department because he is an alcoholic, and because this is his primary
diagnosis, she did not address whether Luper's PTSD prevents him from working as a
firefighter. But that was the central issue to be resolved on remand from our court.

The Board previously conceded that Luper's PTSD need not be the sole cause of
his disability. Here, the evidence establishes that Luper was able to function as a
firefighter notwithstanding his alcoholism before January 2010. But after he developed
PTSD, the combination of his PTSD and his alcoholism left him unable to perform his
duties as a firefighter. The Board emphasized that his alcoholism is to blame for his
disability because he had been abusing alcohol since he was 15 years old, but it
disregarded the fact that Luper functioned as an alcoholic in his career for at least 10
years before the triggering event of Captain Eck's death and autopsy.

The next question to be resolved is whether Luper's disability is a permanent or a
temporary condition. Section 3 of Ordinance No. 215 requires that the disability be
permanent.

Dr. Campbell stated that it was not possible to determine if Luper's PTSD was
permanent because Luper had not made more aggressive efforts to treat his PTSD. Based
on this conclusion, it appears that Dr. Campbell believed that a finding of a permanent
disability requires a finding that the condition can never be successfully treated. But
Ordinance No. 215, Section 19, states:
26

"The Board of Trustees may, when they deem it advisable, call back for re-examination
by a physician, any Member retired by reason of permanent Disability under the
provisions of this ordinance, and if said examination discloses that said Member is then
able to perform his or her duties in said department, he or she may be returned to Service;
and if said Member, upon request, fails or refuses to return to duty, then all payments
from said System shall cease."

Thus, in enacting this ordinance the City anticipated that following a finding of
permanent disability that condition may abate at some future date and allow the
previously disabled former employee to return to work.

Black's Law Dictionary's definition of "permanent disability" supports this notion.
It defines "permanent disability" as: "A disability that will indefinitely prevent a worker
from performing some or all of the duties that he or she could do before the accident or
illness." (Emphasis added.) Black's Law Dictionary 579 (11th ed. 2019). Black's defines
"indefinitely" as: "For a length of time with no definite end." Black's Law Dictionary
918 (11th ed. 2019). Luper's disability meets this definition.

Moreover, while Dr. Campbell did not reach a conclusion on permanency, Dr.
Bharati did. He stated that Luper's PTSD was a chronic, permanent condition. Counselor
Hecht was also of the opinion that Luper would always suffer from PTSD if he was
exposed to future traumatic events. Although there is some evidence in the record that
EMDR therapy would help alleviate Luper's PTSD symptoms, there is no evidence that
such therapy would inoculate Luper from events that could retrigger his PTSD
symptoms.

In the initial appeal in this case, we found that given the paucity of decisions
relating to the disability plan set up for firefighters in Wichita, decisions related to plans
adopted under the Employee Retirement Income Security Act of 1974 (ERISA), 29
27
U.S.C. § 1001 et seq. (2006), can provide some general guidance. See Luper, 2013 WL
2395679, at *7. ERISA cases reflect this same understanding of what is meant by a
"permanent" disability as distinct from a "temporary" disability. See Rote v. Titan Tire
Corp., 611 F.3d 960, 963 (8th Cir. 2010) (holding "indefinite" restriction, when read in
context that there is no reasonably foreseeable end date to the restrictions, qualify as
"permanent" for purposes of an ERISA plan).

While we have no comparable reported cases in Kansas, our overall analysis does
not create a legal outlier. In Siwinski v. Retirement Board of the Firemen's Annuity &
Benefit Fund of the City of Chicago, 125 N.E.3d 1085 (Ill. App. Ct. 2019), the Appellate
Court of Illinois faced similar facts. There, the claimant was a paramedic who applied for
service-connected disability benefits due to PTSD. Her PTSD diagnosis was based on
self-reported PTSD symptoms that were not documented until several years after the
traumatic events occurred. These traumatic events involved transporting the body of a
colleague and being threatened while responding to a shooting. She also struggled with a
major depressive disorder that predated her PTSD. The Illinois Appellate Court held that
the weight of the evidence showed that Siwinski suffered from PTSD and that the PTSD
resulted from at least one act of service and, therefore, the retirement board improperly
denied her disability benefits. 125 N.E.3d at 1095-96.

To summarize, Dr. Campbell agrees that Luper has PTSD from work-related
traumas. Luper's PTSD prevents him from working as a firefighter. Evidence in the
record supports the current permanency of his disability, not a contrary finding. Based on
this analysis, we conclude that there is substantial evidence that Luper suffers from a
permanent disability and the record does not support a contrary finding. As stated in
Denning v. Johnson County Sheriff's Civil Service Bd., 46 Kan. App. 2d 688, 701, 266
P.3d 557 (2011), aff'd 299 Kan. 1070, 329 P.3d 440 (2014), an action "is arbitrary and
capricious if it is unreasonable, without foundation in fact, not supported by substantial
evidence, or without adequate determining principles." Under this standard, the Board's
28
denial of Luper's application for service-connected disability is not supported by
substantial evidence and was arbitrary and capricious.

● The Eligibility Date for Disability Benefits

For its final issue, the Board contends that the district court incorrectly determined
Luper's eligible date of disability benefits as September 17, 2011 because "the court
relied on substantially later 2014-2015 evidence for its finding of 'permanence.'"

Our review of the Board's decision is de novo, so although the district court's
ruling is interesting in the manner in which it agrees with our analysis, it is ultimately
immaterial in deciding the issues in the case.

Luper applied for disability benefits in August 2011. He was later discharged on
September 16, 2011. In our analysis we have relied on facts related to Luper's claim that
postdate his application for benefits only to the extent that they confirm or memorialize
facts regarding Luper's condition as of August 2011 when he applied for disability
benefits. Because Luper has been shown to be unable to work as a firefighter since his
termination from the fire service, we conclude that he was entitled to disability benefits
from and after September 17, 2011, the day following his termination.

In our independent de novo review of the Board's decision, we conclude that the
Board erred in denying disability benefits to Luper, and the district court was correct in
so finding.

Affirmed.