YVONNE LAYNE, Employee/Appellant, v. SAM’S CLUB, SELF-INSURED/CLAIMS MGT., INC., Employer, and OCCUPATIONAL & MANUAL MED. OF DULUTH, ST. MARY’S DULUTH CLINIC HEALTH SYS., DEPARTMENT OF THE AIR FORCE, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 7, 2009
CAUSATION - PSYCHOLOGICAL CONDITION. Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that the employee’s work-related injury was not a substantial contributing cause of any of the employee’s psychological disorders.
Determined by: Wilson, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: James W. Balmer and Stephanie M. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant. Andrew A. Willaert, Gislason & Hunter, Mankato, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s finding that the employee’s work injury with Sam’s Club was not a substantial contributing cause of any of the employee’s psychiatric/psychological disorders. We affirm.
The employee worked at Sam’s Club [the employer] as a product demonstrator. On March 7, 2004, after punching in, the employee slipped on the stairs at her place of employment. She testified that, as she slipped, her right leg flew up, and she “leisurely bounced” down at least three stairs, scraping her back on the bottom of the staircase. She needed assistance to get up.
The employee was subsequently taken to St. Mary’s Center Urgent Care Unit, where she reported pain in the buttocks and into the gluteals but no radiation into the legs. The diagnosis was a low back contusion. The Physician’s Report of Workability indicated the employee could return to work with no limitations the next day.
At a follow-up visit on March 10, 2004, the employee’s primary care physician, Dr. David Hyjek, placed her on sedentary duty for two weeks. On March 29, 2004, the employee returned to Dr. Hyjek and was released to work with no restrictions. The employee obtained no additional medical care for low back issues until October 5, 2004. During that period, she continued to perform her regular work duties without time loss from work.
On October 5, 2004, the employee was seen again for back pain by Dr. Hyjek, who diagnosed “lumbosacral strain with continued symptoms” and referred the employee for physical therapy. The employee attended seven physical therapy sessions between October 12 and November 8, 2004, to treat her back symptoms.
The self-insured employer accepted liability for the employee’s back injury of March 7, 2004, paid the related medical costs, and agreed to pay the employee benefits for a 10% permanent partial disability.
The employee testified that going up and down the stairs at work caused back pain, so she started using the elevator in early 2006.
The employee was seen by psychiatrist Dr. Joseph Sivak on May 12, 2006, at the request of her attorney. At that time, Dr. Sivak’s diagnosis was anxiety disorder, not otherwise specified, depressive disorder, not otherwise specified, rule out dysthemia, and rule out depression secondary to general medical condition. Dr. Sivak also concluded that the employee’s anxiety was a direct result of her fall and stated, “the depression certainly has not gotten better over the years and in fact may have actually gotten a bit worse under the stresses of litigation.” He recommended psychotherapy.
On July 10, 2006, the employee was seen by licensed psychologist Linda Schwartz, at the Duluth Clinic Department of Behavioral Health. Ms. Schwartz reported that the employee’s responses on the Burns Anxiety and Depression scale indicated that she was experiencing severe anxiety and moderate depression that day. The employee saw Ms. Schwartz four more times prior to October 25, 2006. Ms. Schwartz first diagnosed post traumatic stress disorder [PTSD] at the October 25, 2006, appointment and noted that the employee experienced “trauma when taking the elevator.” The employee subsequently received treatment from Ms. Schwartz on several more occasions.
On November 14, 2006, licensed psychologist Julie Lunde referred the employee for a psychosocial assessment and consideration for the Comprehensive Pain Management Program. The employee participated in the pain management program from January 31, 2007, until May 1, 2007.
On January 6, 2007, the employee was seen by vocational expert Karen Streweler, at the request of the employer. After reviewing the employee’s medical records and the opinions of her treating physicians, Ms. Strewler opined that the employee was capable of continuing to work at Sam’s Club.
Dr. Judith Kashtan performed an independent psychiatric evaluation of the employee on February 6, 2007, also at the request of the employer. The doctor’s diagnosis was a depressive disorder coupled with an anxious/hypochondriacal condition. In her report, Dr. Kashtan opined that “the injury the employee sustained on March 7, 2004, did not cause her to develop a consequential mental health injury, nor did it aggravate or accelerate her pre-existing depressive disorder.”
The employee was reevaluated by Dr. Sivak on June 7, 2007, and Dr. Sivak reported that “at this time she meets diagnostic criteria for post traumatic stress disorder.” He recommended that she discontinue working at the employer because that work constituted a trigger for her anxiety and PTSD.
On June 12, 2007, the employee underwent a functional capacity evaluation [FCE] in connection with her discharge from the pain management program. The FCE indicated that the employee “does appear capable of continuing with employment at present position, with present modifications maintained.” The examiner reported that the employee could work at that level eight hours per day, 40 hours per week.
On July 8, 2007, the employee stopped working at the employer. Subsequently, between September 2007 and April 2008, the employee returned to the employer on 52 separate occasions, to shop or socialize with former coworkers.
Kandice Garrison completed an independent vocational evaluation of the employee on September 4, 2007, at the request of the employee’s attorney. In her report, Ms. Garrison opined that the employee was permanently and totally disabled from competitive employment. However, Ms. Garrison subsequently testified that, with modifications, the employee’s duties as a food demonstrator were within her physical capabilities.
The employee filed a claim petition on August 30, 2006, which proceeded to hearing on April 8, 2008. At that time, the employee was claiming entitlement to benefits for a 10% permanent partial disability, medical benefits, and a rehabilitation consultation. The employer denied liability for the claimed psychological injury. The record was left open until May 25, 2008, to give the employer time to review additional out-of-pocket and medical mileage claims. Evidence submitted at hearing included the employee’s extensive treatment records and deposition testimony by Dr. Kashtan and Dr. Sivak.
Dr. Kashtan testified that the PTSD diagnosis does not apply unless the patient experiences, witnesses, or confronts an event that involves “actual or threatened death or serious injury or a threat [to the] physical integrity of self or others.” Dr. Kashtan further testified the employee did not report that her injury was life-threatening, “[s]he didn’t say I was terrified; I thought I was dying.” Additionally, the employee did not describe to Dr. Kashtan having experienced the second criterion for PTSD, a response involving “intense fear, helplessness or horror.” The third criterion, as described by Dr. Kashtan, is the “persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness.” According to Dr. Kashtan, this criterion was not satisfied because the employee was not “trying to avoid places and people around her injury,” adding, “she kept working at Sam’s Club.” During her deposition, Dr. Kashtan reviewed Dr. Sivak’s June 7, 2007, report, which included an overview of the employee’s anxiety treatment during the previous year.
In his deposition, Dr. Sivak testified that he “did not see any indication of an anxiety diagnosis” in the employee’s history prior to her fall. Dr. Sivak also testified that the employee’s fall had aggravated her depression and that the fall was a significantly aggravating factor in terms of triggering her PTSD. It was Dr. Sivak’s opinion that the employee’s anxiety disorder had “developed into a clear, definitive diagnosis of post traumatic stress disorder” between his appointments with the employee in May 2006 and June 2007. Based on his June 2007 evaluation, Dr. Sivak did not believe that the employee was capable of working, that, given “the nature of that work and the nature of post traumatic stress disorder . . . this woman would psychiatrically decompensate.”
In a findings and order filed on August 25, 2008, the compensation judge found, in part, that the employee’s injury of March 7, 2004, was not a substantial contributing cause of any of the employee’s psychiatric or psychological disorders; that the employee could perform the duties of product demonstrator, with minimal modifications; and that the employee does not suffer from PTSD. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether “the 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 (2008). Substantial evidence supports the findings if, in the context of the entire record, “they 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. Id. at 60, 37 W.C.D. at 240. 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 the 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).
On the issue of the claimed consequential psychological injury allegedly resulting from the employee’s work-related low back condition, the compensation judge found (1) that the employee’s psychological/psychiatric condition predated the slipping incident of March 7, 2004; (2) that the work incident did not create an intense fear or constitute a life-threatening experience; (3) that the employee did not exhibit a persistent avoidance of her former place of employment; and (4) that a preponderance of evidence did not support the conclusion that the employee suffers from PTSD. Specific relevant findings also include the following:
18. As the medical records reflect and as the employee’s testimony confirms, the employee, well prior to the March 7, 2004 slipping incident, had been experiencing a host of stressors in her life dating back to at least the early 1990’s. The records also reflect a number of examples where the employee displayed excessive anxiety over physical symptomatology such as chronic coughing.
19. Although the employee suffers from a depressive disorder together with excessive anxiety over her physical symptoms, these conditions predated the slipping incident of March 7, 2004.
20. The Court specifically finds that the slipping incident of March 7, 2004 and its sequelae are not a substantial contributing cause of any of the employee’s psychiatric/psychological disorders.
In his memorandum, the judge further explained:
In not accepting Dr. Sivak’s opinion that the work injury of March 7, 2004 was a substantial contributing cause of any psychiatric/psychological conditions from which the employee suffers the Court cannot . . . fail to note the substantial “stressors” in the employee’s life well preceding the slip and fall of March 7, 2004 as well as non-work related stressors subsequent to that slip and fall injury. . . . However it is clear that these and not the slip and fall are the cause of any psychiatric/psychological condition from which the employee may suffer.
While the employee appealed from all of these findings, her sole argument on appeal is that she developed PTSD over a period of time between May 2006 and June 2007, and, because Dr. Kashtan had no information about her treatment during that period, Dr. Kashtan’s opinions are speculative and lack foundation. The employer argues, on the other hand, that, although Dr. Kashtan did not review all of the employee’s records from the Duluth clinic, her failure to do so did not necessarily render the doctor’s opinion without foundation.
Foundation goes to the competency of a witness to provide an expert opinion. The competency of a medical expert depends both on the witness’s scientific knowledge and the witness’s practical experience with the subject matter of the offered testimony. Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A.1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)). In the present case, Dr. Kashtan’s failure to review recent medical treatment records calls into question neither the degree of the doctor’s scientific knowledge nor the extent of her experience; see Drews, 55 W.C.D. at 39; Reinhardt, 337 N.W.2d at 93. Rather, that failure goes to the persuasiveness or weight to be accorded to the doctor’s opinion. Drews, 55 W.C.D. at 40. See also Stuhr v. Northwestern Travel Serv., Inc., 57 W.C.D. 352 (W.C.C.A. 1997), summarily aff’d (Minn. Dec. 15, 1997), citing Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994) (while adequate foundation is necessary for a medical opinion to be afforded evidentiary value, the expert need not be made aware of every relevant fact).
We also reject the employee’s argument that Dr. Kashtan had “no information whatsoever on what happened to Ms. Layne after she entered care, the very period of time during which Ms. Layne’s condition evolved into post traumatic stress disorder.” Dr. Kashtan was provided with Dr. Sivak’s June 2007 report at her deposition, and that report discussed the employee’s condition and treatment during the period at issue, from May 2006 through June 2007. Dr. Kashtan testified that, although someone who had seen the employee after she did in February 2007 “would definitely have a better sense of her present status, . . . [a]s to how that relates to my opinion on how the injury affected her, that’s a different question.” We also note that counsel for the employee had every opportunity to present Dr. Kashtan with those records or ask a hypothetical question at Dr. Kashtan’s deposition. He elected not to do so.
The specific nature of the employee’s psychological condition was disputed at hearing and remains disputed on appeal. Dr. Sivak diagnosed the employee as suffering from PTSD. However, Dr. Kashtan testified that the PTSD diagnosis applies only where “[t]he person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury or a threat [to] physical integrity of self or others.” Here, the employee testified that she “leisurely bounced” down three steps, and the compensation judge specifically found that the slipping incident did not cause an intense fear of a life-threatening experience. Additionally, Dr. Kashtan testified that one criterion of PTSD is “persistent avoidance of stimuli associated with the trauma,” and the compensation judge found that the employee continued to frequent the employer, shopping at the store and socializing with former coworkers on 52 separate occasions between September 2007 and April 2008.
Dr. Kashtan concluded that the employee’s “precipitating factors appear to be financial problems, incomplete grieving over family deaths, and her distress over the workers’ compensation litigation process, rather than the back injury itself.” The employee’s treatment records support that conclusion, indicating that the employee was grieving the loss of her mother, father, and several siblings and that she was experiencing distress over the workers’ compensation litigation process. While there is arguably a kind of chain of causation between the employee’s work injury and her difficulty coping with complications that typically accompany the litigation process, conditions resulting from such indirect causal relationships are generally not compensable. See, e.g., Hendrickson v. George Madsen Constr. Co., 281 N.W.2d 672, 31 W.C.D. 608 (Minn. 1979) (heart attack sustained while the employee was pursuing a workers’ compensation claim in court was not compensable); Melartin v. Mavo Sys. Inc., No. WC04‑328 (W.C.C.A. May 5, 2005) (aggravation of preexisting alcoholism by time off after work injury was not compensable). Other evidence also supports the judge’s finding as to causation of the psychiatric/psychological condition.
A compensation judge’s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In the present case, it is clear from his findings that the compensation judge reviewed and weighed the medical opinions in the context of the facts and medical evidence, and he reasonably found the causation opinion of Dr. Kashtan more persuasive than that of Dr. Sivak. Because the record as a whole adequately supports the facts assumed by Dr. Kashtan in rendering her opinion, the compensation judge did not err in relying on Dr. Kashtan’s opinion in concluding that the employee’s March 7, 2004, injury was not a substantial contributing cause of the employee’s psychiatric/psychological condition. We must, therefore, affirm.
 The employee also worked part time at Lake Superior Life Care Center.
 Before the employee began the program, Ms. Schwartz wrote a letter to Lake Superior Life Care Center, informing them that the employee needed a nine- to twelve-month leave of absence from her position to attend the pain management program. The employee never returned to work at her job there.
 And also as a receptionist at Lake Superior Life Care Center.
 Medical records contain reference to the employee’s incomplete grief over family deaths, including a sister and brother-in-law that died in 1997; family-related stress; over-focusing on physical symptoms from personal health issues; and distress over workers’ compensation litigation. Some of these stressors were noted in records prior to the employee’s work injury.
 While the employee appealed from this finding, she did not address it in her brief. Issues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court. Minn. R. 9800.090, subp. 1.
 For example, the employee was distressed in August 2006 about two holes found in her granddaughter’s heart. In January 2007, records indicate that she was distressed about her daughter’s divorce. In June 2007, Ms. Lunde indicated the employee’s “coughing experience has increased her anxiety symptoms.” In August 2007, the employee was distressed about her brother dying.