GREGORY M. BLAIR, Employee/Cross-Appellant, v. ALEXANDRIA ELEC. and FEDERATED MUT. INS. CO., Employer and Insurer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 2, 2004
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee's testimony and his medical records, supported the conclusion that the employee's claustrophobia and PTSD are causally related to the work injury.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the record would not support the conclusion that the employee was totally unable to work at all due to his psychological condition, and where there was no evidence establishing a reasonably diligent search for work, substantial evidence did not support the judge=s award of temporary total disability benefits.
Affirmed in part and reversed in part.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Jeanne E. Knight.
Attorneys: William J. Krueger, Attorney at Law, New Brighton, MN, for Employee/Cross-Appellant. David N. Larson, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for Employer and Insurer/Appellant.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge=s decision that the employee=s psychological condition is causally related to his 1995 work injury and that the employee became temporarily totally disabled as a result of his psychological condition on October 29, 2002. The employee cross appeals from the judge=s finding as to the date of commencement of temporary total disability. We affirm in part and reverse in part.
On July 11, 1995, a twenty-pound piece of equipment fell a distance of thirty to forty feet and struck the employee in the face while he was working as an electrician for Alexandria Electric [the employer], which was then insured for workers= compensation purposes by Federated Mutual Insurance Company [the insurer]. The employee was initially transported to a hospital in Glenwood, Minnesota, and then later to Douglas County Hospital in Alexandria, Minnesota. Doctors at that time determined that the employee did not have any facial fractures; however, when problems with his nose and face persisted, a diagnosis of nose fracture was made. Nasal fracture reduction surgery was performed on July 26, 1995, an antibiotic, Keflex, was prescribed following the procedure. On August 9 and October 4, 1995, the employee reported to his treating doctor, Dr. G. L. O=Halloran, that he had had a fairly severe allergic reaction to the Keflex, with associated throat swelling. On October 13, 1995, the employee was seen by Dr. D. M. Odland, who noted that the employee was complaining of claustrophobia and blurred vision. It was Dr. Odland=s opinion that the claustrophobia had occurred as a consequence of the allergic reaction. The employee also complained of left thigh numbness.
The employee was off work from July 11, 1995, to July 18, 1995, and again from July 26, 1995, to August 13, 1995. He then returned to his usual pre-injury employment as an electrician, without restrictions. In December of 1995, Dr. Odland referred the employee to neurologist Dr. Irfan Altafullah, because of ongoing complaints of anterior thigh numbness. Dr. Altafullah examined the employee on January 10, 1996, and diagnosed, in part, Aprobable maralgia parasthatica@ and post-concussion headaches. On November 14, 1996, Dr. Odland wrote to the employee, stating, in part, that he thought the employee=s claustrophobia was related to post traumatic stress disorder [PTSD], which could be addressed by psychological treatment. However, the employee did not seek a psychological consultation.
The employee continued to perform his regular duties as an electrician, without time loss from work, until January 13, 2000, when he quit his job after a disagreement with his employer=s son. The employee did not tell the employer that his resignation was in any way related to his work injury. When he filed for unemployment benefits, the employee again did not indicate that his resignation was in any way related to his work injury. Unemployment benefits were denied.
On March 15, 2000, the employee was seen by Dr. Michael Bristow for multiple symptoms but primarily low back discomfort. Dr. Bristow ordered a complete physical and spine x-rays. The x-rays showed minimal degenerative changes of the lumbar spine, and notes from the exam conducted by Dr. Bristow on March 22, 2000, refer to chronic ongoing symptoms including neck, back, and some associated head injury complaints. By April 5, 2000, the employee was complaining of intractable low back pain with bilateral posterior thigh pain, which he related to his work injury. The employee subsequently treated for neck and back symptoms.
On October 30, 2001, Dr. Bristow reported to the employee=s attorney that the employee had sustained both a lumbar and cervical injury as a result of the work incident and that the employee had a 9.5% whole body disability as a result. In response to apparent questioning about the employee=s psychological condition, Dr. Bristow responded, A[i]n regard to his possible depression issues, once again, given the inability to see him, I feel unable to base my opinion on his current situation. I have noted that he has been anxious and may well have an associated psychologic or psychiatric diagnosis.@
The employee was seen by psychiatrist Dr. Thomas Gratzer on November 11, 2002. Dr. Gratzer interviewed the employee but conducted no testing and diagnosed dysthymia, claustrophobia, possible cognitive disorder n.o.s. and avoidant personality features. Dr. Gratzer went on to relate the employee=s development of claustrophobia to his allergic reaction to Keflex. Dr. Gratzer further indicated that the employee described impairments in concentration and that it was possible that his impaired concentration Amay be related to anxiety symptoms and his specific phobia@; however, the doctor went on to note that the employee=s anxiety symptoms had significantly remitted since the employee left work in January 2000. Dr. Gratzer referred the employee to Dr. Michael Fuhrman for neuropsychological testing to rule out organic sequelae from the head injury.
Dr. Fuhrman conducted extensive tests on the employee, including tests as to intellectual ability, memory, executive functioning, language, and other abilities. In his report of April 18, 2003, he concluded that the employee=s cognitive symptoms were due to a psychiatric disorder rather than an organic cause and that the employee did not require any restrictions on cognitive grounds. Dr. Fuhrman also noted that the employee=s somatoform and anxious depressive features had probably manifested before 1995.
Subsequent to Dr. Fuhrman=s testing, Dr. Gratzer wrote to the employee=s attorney, stating that the July 11, 1995, injury was a substantial contributing factor Ato Mr. Blair=s current psychiatric presentation which includes his claustrophobia, situational type, and cognitive disorder n.o.s.@ Dr. Fuhrman went on to state that the employee=s ability to secure employment had Abeen affected by his psychiatric condition@ and that, A[b]ased on Mr. Blair=s self report, his psychiatric condition has been a substantial contributing factor to his inability to secure employment related in part to his cognitive complaints.@
The employee filed a claim petition on February 28, 2001, claiming an injury to the low back, face, head, and neck and claiming unknown permanent partial disability benefits and temporary total disability benefits continuing from January 13, 2000. The matter proceeded to hearing on May 13, 2003, at which time the employee=s counsel explained that he was also claiming a consequential emotional injury. In a findings and order filed on July 14, 2003, the compensation judge denied the employee=s claims for cervical, lumbar, and organic brain injury. The judge went on to find that the employee=s claustrophobia and PTSD were consequential to his reaction to the medications prescribed for his work injury and that the employee had become temporarily totally disabled as a result of his psychological condition on October 29, 2002, the date on which the employee was first seen by Dr. Gratzer. Both parties appeal.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. ld. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ ld.
1. Psychological Condition - Causation
The employer and insurer contend that substantial evidence does not support the judge=s finding that the employee=s psychological condition is causally related to the work injury. We are not persuaded.
The judge found that Athe employee=s claustrophobia and PTSD are causally connected to his work injury and consequential reaction to the medication prescribed.@ The employee testified that he had never experienced symptoms of claustrophobia before he had a severe allergic reaction to Keflex, given to treat his admittedly work-related fractured nose. Medical records from 1995 reflect that the employee had reported the allergic reaction to Dr. Halison on August 9, 1995, and October 4, 1995. By October 13, 1995, the employee was complaining of claustrophobic symptoms, which Dr. Odland opined were a consequence of the allergic reaction. On November 14, 1996, Dr. Odland wrote to the employee, stating that his claustrophobia was related to PTSD. While no other doctor has diagnosed PTSD since that time, psychiatrist Dr. Gratzer diagnosed claustrophobia and related it to the employee=s allergic reaction following the 1995 work injury. Accordingly, the employee=s testimony and medical records provide substantial evidence to support the judge=s finding that the employee=s claustrophobia and PTSD are causally related to the work injury, and we affirm.
2. Temporary Total Disability
The employer and insurer next contend that substantial evidence does not support the judge=s finding that the employee has been temporarily totally disabled as a result of his psychological condition continuing from October 29, 2002. This is a more troubling issue.
The judge=s finding reads, A[t]he employee became temporarily totally disabled from employment as a result of his psychological condition on October 29, 2002, when the employee was seen by Dr. Gratzer.@ In her memorandum, the judge explained her finding by stating that Dr. Gratzer Aopined the employee=s psychological condition was a substantial contributing cause to the employee=s inability to work@ and that ADr. Gratzer has opined [that the employee] is unable to work due to his psychological condition.@ In actuality, Dr. Gratzer did not opine that the employee was unable to work due to his psychological condition; rather, he stated only that, A[b]ased on Mr. Blair=s self report, his psychiatric condition has been a substantial contributing factor to his inability to secure employment related in part to his cognitive complaints.@ (Emphasis added).
The employee worked as an electrician, without time loss or wage loss, from the time Dr. Odland opined that the employee=s claustrophobia was related to PTSD until the employee resigned from employment in January of 2000, after a dispute with the employer=s son. Both Dr. Gratzer and Dr. Fuhrman (to whom the employee was referred by Dr. Gratzer) noted that the employee=s complaints of claustrophobia and anxiety symptoms had decreased since he ceased work with the employer. In fact, Dr. Gratzer noted that the employee=s anxiety symptoms had significantly remitted after he left work. On November 11, 2002, Dr. Gratzer indicated that the employee had Ainfrequent episodes of claustrophobia@ and that the employee Abelieves his physical problems have affected his employment prospects.@ (Emphasis added). On mental status exam on that date, the employee was observed to be only Amildly anxious,@ and he Adid not show gross impairment in memory or concentration.@
Dr. Gratzer referred the employee to Dr. Fuhrman because of the employee=s complaints of impairment in concentration. Dr. Fuhrman was the only doctor to conduct actual testing with regard to the employee=s psychological and cognitive symptoms. In his report, Dr. Fuhrman noted,
[The employee] has continued to complain of inattentiveness and forgetfulness. I see signs of these symptoms in the results, albeit inconsistently and not in an organic configuration. Symptoms like inattentiveness and forgetfulness are common in the absence of organic determinants. Both somatoform and anxious-depressive disturbances are recognized as competent producers of these symptoms, through strictly nonorganic mechanisms.
He opined that the employee=s cognitive symptoms did not have an organic basis but were due to a psychiatric disorder, and he deferred to Dr. Gratzer Aon the accident-relatedness of the psychiatric disorder,@ noting, AI am inclined to think that the accident must be significant. Somatoform and anxious-depressive features probably manifested before 1995, however.@ Dr. Fuhrman went on to state that the employee did not require restrictions on cognitive grounds.
The only evidence that might support a finding that the employee was totally unable to work due to his psychiatric condition is a AMedical Assessment of Ability To Do Work-Related Activities (Mental)@ form contained in Dr. Gratzer=s records. It was completed by Dr. Gratzer on March 17, 2003, and rates the employee as fair to poor in all categories, including the ability to follow work rules, use judgment, maintain attention/concentration, and understand and carry out job instructions. However, this form appears to have been based on the employee=s self-reports of his abilities, as the form was completed before any testing had been done, and there is nothing else in Dr. Gratzer=s reports to confirm that the employee was disabled by his psychiatric condition at that time. In addition, Dr. Gratzer mentioned depression as one of the findings that supported his assessment, and there has been no determination that the employee=s depression is causally related to his work injury. Rather, Dr. Fuhrman had specifically indicated that A[s]omatoform and anxious-depressive features probably manifested before 1995,@ and records of the Mayo Clinic from December of 1992 contain an MMPI, which was interpreted as showing the employee to be mildly depressed, pessimistic, and likely to worry excessively.
The only specific reference in Dr. Gratzer=s records supporting a finding of total disability was the doctor=s May 12, 2003, notation that, based on the employee=s self-report, the employee=s psychiatric condition had been a substantial contributing factor in his inability to secure employment. However, the employee did not provide testimony at hearing that would support a finding that he had been totally unable to work due to his psychiatric condition. While he testified vaguely to memory and concentration problems, when asked why his various problems interfered with his ability to do his old job, he replied, A[t]he lifting is the number one thing. Being an electrician you=re going to lift.@ When asked why he had not tried to work since January of 2000, he testified, A[w]ell, I really haven=t found anything.@ Accordingly, substantial evidence does not support the conclusion that the employee is totally unable to work as a result of his psychiatric condition, and the judge=s finding to that effect is reversed.
No doctor placed specific restrictions on the employee due to his claustrophobia or PTSD. However, assuming that a person with claustrophobia should avoid working in confined spaces, the question becomes whether the employee has made a reasonable and diligent search for work within that limitation. While the compensation judge did not address this issue, and we are not a fact finding body, we see no reason to remand. The employee=s only testimony regarding job search from January of 2000 to the time of trial was that he had been Ato a few different places and they said, well, if you got back problems there=s no sense- - most of it=s all lifting@ and that he had used the computers at the unemployment office prior to March 8, 2000. The employee admitted that he had completed no job applications since January of 2000 and could list no employers that he had contacted since 2001. Temporary total disability benefits were awarded continuing from October 29, 2002. Given that the record will not support a finding of total medical inability to work, and given the absence of evidence establishing a diligent job search, we reverse the judge=s award of temporary total disability benefits.
 Dr. Odland actually used the term post traumatic stress syndrome, but the condition has also been referred to as post traumatic stress disorder.
 Dysthymic disorder involves a chronically depressed mood. DSM-IV-TR (4th ed. 2000).
 Cognitive disorder not otherwise specified is characterized by cognitive dysfunction presumed to be due to the direct physiologic effect of a general medical condition that does not meet the criteria for any of the specific deliriums, dementia, or amnestic disorders. DSM-IV-TR (4th ed. 2000).
 Dr. Gratzer did state that the employee Adoes not feel physically or emotionally able to work as an electrician which has been his vocation throughout adult life.@
 Dr. Gratzer=s office notes were not offered into evidence.
 On cross appeal, the employee contends that the correct date of temporary total disability should be January 13, 2000. We are not persuaded. There was no medical opinion stating that the employee has been unable to work since that date, and the employee did not establish a reasonable and diligent search for employment.