SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records, expert medical opinion and lay testimony support the compensation judge’s determination that certain medical expenses relating to the post-traumatic stress disorder were reasonable and necessary and causally related to the employee’s work injury.
Compensation Judge: Kirsten M. Tate
Attorneys: Mark M. Walbran, Walbran & Furness, Owatonna, Minnesota, for the Respondent. Nathaniel A. Dahl and Evan W. Cordes, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, Minnesota, for the Appellants.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
The employer and insurer appeal the compensation judge’s finding that the employee’s claims for medical treatment following a work related electrical injury were reasonable, necessary, and causally related to the work injury. Because substantial evidence supports the judge’s findings and the medical expert opinions upon which the judge relies have adequate foundation, we affirm.
Joshua Flicek, the employee, was a successful technical sales representative for Lincoln Electric, a manufacturer of welding equipment and supplies. His job required him to drive extensively and make sales calls. Scoring more than 100 percent on his bonuses, he testified that he was the top sales representative in his district.
Before the employee began working for the employer in 2014, he underwent a number of MRI scans for ongoing headaches and upper extremity weakness. To rule out a possible stroke, he had a brain MRI in 1997. The findings were consistent with a tiny focal area of increased signal with a possibility of small vessel ischemic disease. In 1998, he underwent an MRI of the cervical spine for left upper extremity “clumsiness.” (Ex. 11.) He suffered from migraine headaches and underwent another brain MRI in February 2000 which showed a single abnormality in the left posterior frontal region of the brain which was interpreted as a possible focal area of encephalomalacia, vasculitis, Lyme disease, or demyelinating disease. In 2007, he suffered trauma to his face and head during a possible assault. Despite these events, the employee was able to successfully manage his job and family farm, invested in financial markets for himself and his parents, and was socially active in his community.
On April 12, 2016, the employee suffered an electrocution when attempting to connect a welder to a power supply while making a sales call to a customer. With his right hand on the metal wall of a welding booth and his left hand on the plug, he became “locked on” as 230 to 460 volts ran through him. He was unable to let go until the breaker blew a few seconds later. He described the event as “the most incredible power” he could imagine and he was “scared” that he would never get off of it. “It was an absolutely horrible experience.” (T. 40.) He saw smoke come from his left hand, but there were no visible burn marks, only what appeared to be soot on his skin. His hands felt numb and he felt pain in his chest. He had difficulty breathing which continued to worsen. About 45 minutes after the accident, he was taken to the Owatonna Hospital emergency room where he underwent an EKG. The EKG was normal and he was referred to the St. Paul Regions Hospital burn unit.
On April 27, 2016, he saw William J. Mohr, M.D., a burn surgeon at Regions, and an associate professor and the University of Minnesota Medical School. The employee reported significant anxiety to the point of chest tightness and heart pounding. He was sleeping “ok”, but would wake up and could not return to sleep. He reported a nightmare about electricity. Dr. Mohr diagnosed the employee with shock from electric current and paresthesia of the bilateral hands. He prescribed medication and restricted the employee from driving, limited his work to office work, and restricted him from working with electricity. As the employee was also suffering from depressed mood and anxiety, he was treated in psychotherapy by Mikki Rothbauer, MSW.
A month later, the employee reported eating and sleeping well, but continued to experience bilateral hand pain. He was given restrictions of no lifting greater than 5 pounds and no driving. In July 2016, he saw Dr. Mohr again and at that time was given the additional diagnosis of post-traumatic stress disorder (PTSD).
Thereafter, the employee continued to have ongoing symptoms and was seen by multiple providers. In August 2016, the employee vomited after leaving a job site, which he attributed to anxiety from the electrical shock event. He was referred to Susan Bailey, APRN-CNP, RN for depression and anxiety. She diagnosed the employee with PTSD and recommended a neuropsychological evaluation. In October, 2016, he underwent a neuropsychological consultation with Tom Kern, Ph.D., L.P. Dr. Kern concluded that the employee was experiencing a decline in executive functioning consistent with anterior cerebral dysfunction which was likely related to the electrical injury. He recommended psychotherapy, medication, and a brain injury program like the one at Courage Kenny Rehabilitation Institute.
The employee sought care with Courage Kenny and was evaluated by Jerry Halsten, PhD, L.P, ABPP-CN in January 2017. Dr. Halsten, a licensed psychologist, conducted an examination and diagnosed electric shock with executive functioning deficits, PTSD F43.10 with ongoing nightmares, hypervigilance, avoidance, somatic anxiety symptoms, and depression. He referred the employee to David B. Lund, PsyD, L.P. at Courage Kenny. Dr. Lund, a licensed psychologist, administered CAPS-5 testing and described how the employee met the criteria for a PTSD diagnosis under DSM-5. (Exs. F and G.)
Dr. Mohr explained the causal connection between electric shock injuries and traumatic brain injuries and PTSD symptoms. (Ex. C.) Dr. Mohr reported that anxiety, nightmares, depression, poor concentration, and memory problems are the most common findings among those with ongoing complaints after electrical injuries. Dr. Mohr further explained that the employee sustained a low voltage (230-460 volts) electrical injury. While no underlying burns were seen, the employee had direct exposure to the alternating electrical current which, he noted, would have resulted in the employee’s death had the breaker switches not tripped. Dr. Mohr described how low voltage electrical injures cause damage and dysfunction in peripheral nerves, which can develop scar tissue and thereby impair the transmission of signals through the nerves. Based on his more than 20 years of experience as a burn surgeon, Dr. Mohr opined that these symptoms are commonly seen after low voltage electrical injures and were here the direct result of the electrical injury the employee sustained on April 12, 2016. (Ex. C.)
The employer and insurer retained two medical experts, Joseph J. Burgarino, M.D., a neurologist, and Paul Arbisi, Ph.D., ABAP, ABPP, L.P., a clinical psychologist and full professor at the University of Minnesota, who has authored multiple peer-reviewed papers related to the diagnosis and assessment of PTSD and mild traumatic brain injury (TBI). (Exs. 2 and 3.)
Dr. Burgarino examined the employee, took a history, and reviewed medical records. He opined that the medical evidence did not support the diagnosis of TBI or PTSD related to the employee’s work injury. He explained that a simple shock to the hand would be expected to have resolved within two weeks.
Dr. Arbisi also examined and evaluated the employee, took a history, and reviewed multiple medical records. He conducted testing and administered an MMPI-2-RF. He applied the DSM-5 factors for PTSD and concluded that the employee did not meet the criteria for a diagnosis of PTSD. He noted that the DSM-5 diagnostic criteria requires exposure to “actual or threatened death, serious injury . . . in one or more of the following ways, directly experiencing the traumatic event, witnessing in person the event that occurred to others, learning that the traumatic events occurred to close family members or close friends, events must have been violent or accidental.” (Ex. 1.) He explained that the employee failed to meet this criteria because the brief electrical shock did not result in serious injury nor did the employee report symptoms of re-experiencing avoidance symptoms associated with brief electric shock. Based on the MMPI-2-RF, he concluded that the employee’s somatic and cognitive complaints were likely non-credible and that his complaint of profound memory deficits and loss of time with no recall was not supported by neuropsychological findings. Dr. Arbisi questioned the validity of the employee’s experts’ opinions in that many of the experts were not board certified psychologists, and Dr. Mohr, who was a burn surgeon, was not qualified to render an opinion on PTSD. He concluded that the employee likely suffered from mild depression and found no evidence that the employee suffered a brain injury.
Following the receipt of Dr. Arbisi’s opinions, the employer and insurer denied further medical treatment. The employee filed a claim for medical benefits and the issues were heard on November 1, 2017. The compensation judge found that the employee was a credible witness and that medical treatment was reasonable, necessary, and causally related to the employee’s work injury. She did not make a specific finding that the employee suffered a TBI or PTSD related to the injury. The employer and insurer appeal.
The treatment at issue involved both physical rehabilitation and psychological and mental health treatment. The employer and insurer’s appeal focuses on treatment for psychological and mental health. They argue that the judge’s award of medical treatment expenses is unsupported by substantial evidence. In requesting that the judge’s findings be reversed, the employer claims that the employee’s experts and providers lacked appropriate qualifications and drew their conclusions based upon facts not supported by the evidence. The employer and insurer also specifically call into question the qualifications of Drs. Lund and Mohr to assess the presence of PTSD and TBI as related to the work injury.
In 2013, the legislature changed the statutory definition of occupational disease to include PTSD as a mental impairment, as defined, in relevant part, by Minn. Stat. § 176.011, subd. 15 (d):
For the purposes of this chapter, "mental impairment" means a diagnosis of post-traumatic stress disorder by a licensed psychiatrist or psychologist. For the purposes of this chapter, "post-traumatic stress disorder" means the condition as described in the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association. . . . .
The employer and insurer argue that the judge erred in relying on the opinions of Dr. Mohr, who is not a licensed psychologist or psychiatrist. While Dr. Mohr is not a licensed psychologist or psychiatrist, we disagree that the judge’s holding should be reversed on this basis. To the extent that the statutory definition requires that a licensed psychologist or psychiatrist offer a diagnosis of PTSD, any such requirement is fully met in this case. The compensation judge also relied on two further medical experts in addition to Dr. Mohr, and both have the requisite qualifications. According to his curriculum vitae, Dr. Lund is licensed psychologist. (Ex. G.) He administered the CAPS-5 and concluded that the employee’s electrical injury caused executive function deficits and PTSD. Dr. Halsten is also a licensed psychologist. (Ex. A-9.) He diagnosed the employee with electric shock with executive functioning deficits, PTSD with ongoing nightmares, hypervigilance, avoidance, somatic anxiety symptoms and depression, which he related to the employee’s work injury on April 12, 2016.
It is well established that a compensation judge’s choice among conflicting expert opinions must be upheld unless the opinion relied upon lacks adequate factual foundation. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). An expert opinion lacks adequate foundation when the opinion does not include the facts and/or data upon which the expert relied in forming the opinion, it does not explain the basis for the opinion, or the facts assumed by the expert are not supported by the evidence. Mattick v. Hy-Vee Food Stores, 898 N.W.2d 616, 77 W.C.D. 617 (Minn. 2017), citing Hudson v. Trillium Staffing, 896 N.W.2d 536, 77 W.C.D. 437 (Minn. 2017). After reviewing the record in this matter, we conclude that both Drs. Lund and Halgen have the necessary foundation upon which to base their opinions. Nor was it error for the compensation judge to consider the opinion of Dr. Mohr to the extent that it lent further support to understanding the relationship between electrical shock injuries and their effects.
The employer and insurer also maintain that substantial evidence does not support the judge’s finding that the employee was credible. Arguing that there were a “myriad of conflicts”[1] within the employee’s testimony and medical records, the employer and insurer seek reversal of the judge’s findings and order.
The presence of inconsistencies between the employee’s testimony and the medical records goes to the weight or persuasiveness accorded to that evidence by the finder of fact. Cf., e.g., Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996). Some portions of the employee’s testimony did, at times, appear inconsistent. For example, the employee testified that despite the injury, he continued to earn an income, ride horses, hunt, fish, and manage his own and his parents’ financial investments, yet claimed that he had difficulty concentrating and being a productive member of the workforce. However, we conclude that the inconsistencies in this matter were not of such a level of magnitude as to require reversal. The compensation judge found the employee credible, and the assessment of witness credibility is a unique function of the trier of fact. This court may not disturb a determination of credibility unless clearly contrary to the evidence. Even v. Kraft, Inc., 445 N.W. 2d 831, 42 W.C.D. 220 (Minn. 1989).
The judge noted that prior to the electrical injury, the employee was a highly functional individual who was very successful at his job, and that the work injury has unfortunately impaired his ability to be that individual; since the electrical injury, the employee struggles with concentration, focus, memory, and is unable to be a productive member of the workforce. The judge further noted that the employee had not struggled with mental health issues in the past. She determined that the electrical injury could have resulted in the employee’s death, had the breaker switches not tripped, or at least have given the employee the perception that his life was in danger. She concluded that the employee’s complaints, including nightmares involving electricity, vomiting at a customer’s place of business due to anxiety, and experiencing panic attacks when around electrical equipment, have been consistent and significant since the injury.
Most importantly, the judge accepted the opinions of Drs. Mohr, Lund, and Halgen over the opinions of Dr. Burgarino and Dr. Arbisi, who both stated that the April 12, 2016, injury was not significant as there was no electrical burn. Dr. Mohr concluded that death was possible, and that that low voltage electrical shocks can result in significant damage without evidence of an actual burn. The DSM-5 definition of PTSD also considers a “threat” of personal injury or death sufficient. The employee testified that the shock he experienced was “the most incredible power” he could imagine, that he was “scared” that he would never get off of it, and that “it was an absolutely horrible experience.” (T. 40.)
Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). We conclude that substantial evidence supports the judge’s findings and we affirm.
[1] Specifically, the employer and insurer argue that the information the employee gave to his providers contradicts his testimony, as follows:
[The employee] tells doctors he had no nightmares, then testified on the stand he had nightmares. He made no mention of flashbacks to any doctor, until a report is being prepared for trial, then suddenly he has flashbacks multiple times per week. He has no anxiety or need for medication, until he was asked to undergo an EMG, the only diagnostic test that could objectively support his alleged neuropathic complaints, yet suddenly he has massive anxiety. He had no vision issues, until the month before trial, then he reported vision issues. He had no seizure issues until he was on the stand. He had no difficulty going on trips, visiting with friends, fishing, hunting, and raising a bull, yet when a report is being prepared for trial, he cannot go into any social situations.
Appellants’ Brief at 25.