MARY KAY SUESS, Employee/Appellant, v. ST. JUDE MED., INC., and SENTRY INS. CO., Employer-Insurer, and PRIMARY BEHAVIORAL HEALTH CLINIC, INC., and MASSAGE ENERGY THERAPY, INC., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 25, 2009
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee’s work-related injury was not a substantial contributing cause of the employee’s psychological conditions.
PERMANENT PARTIAL DISABILITY - PSYCHOLOGICAL CONDITION. The compensation judge erred in finding the employee was not entitled to any permanent partial rating for her psychological conditions on the basis that the permanency rule in effect allowed a rating for a psychological condition only if it was caused by an organic brain injury. There is no rating in the disability schedules for psychological conditions not due to organic brain dysfunction. As a non-scheduled injury, the employee’s psychological condition must be considered under Minn. Stat. § 176.105, subd. 1.(c) and Weber.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where the medical records include a note approving the continuation of massage therapy during the disputed time period, and the compensation judge denied payment of massage therapy expenses based on the lack of a prescription, the compensation judge must reconsider that employee’s claim for payment on remand.
Affirmed in part and vacated and remanded in part.
Determined by: Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Appellant. David Klaiman, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that her July 2005 personal injury is not a substantial contributing cause of the employee’s psychological conditions and the finding that the employee is not entitled to a permanent partial disability rating for depression, post-traumatic stress disorder, and a somatoform disorder. The employee also appeals the compensation judge’s denial of payment for massage therapy expenses. We affirm, in part, and vacate, in part, the compensation judge’s decision and remand the case to the compensation judge for further findings consistent with this opinion.
Mary Kay Suess, the employee, sustained a personal injury on July 19, 2005, while employed by St. Jude Medical, Inc., the employer, then insured by Sentry Insurance Company. The employer and insurer admitted liability for the employee’s personal injury and paid benefits to and on behalf of the employee.
The employee filed claim petitions alleging her personal injury caused or aggravated a chronic pain syndrome and depression and sought payment for a 32% permanent partial disability for these conditions, as well as payment of permanent disability for a fracture of the coccyx. She additionally sought payment of massage therapy expenses.
In a Findings and Order served and filed March 9, 2009, the compensation judge found the employee suffered from major depression, recurrent, severe, with elements of post-traumatic stress disorder and a somatoform disorder, but found the admitted work injury was not a substantial contributing factor to the development or progression of these conditions. The compensation judge further found the permanent partial disability rules allow a rating for a psychological condition only if it is caused by an organic brain injury. Since the employee did not sustain an organic brain injury as a result of her personal injury, the compensation judge denied the employee’s claim for permanent partial disability for depression, post-traumatic stress disorder, or a somatoform disorder. The compensation judge awarded the employee a 4% whole body disability for a fracture of the coccyx. The compensation judge awarded payment for the employee’s massage therapy received through October 2, 2007, but denied the employee’s claim thereafter finding the record did not contain a prescription for the massage therapy provided after that date. The employee appeals the compensation judge’s finding that the personal injury was not a substantial contributing cause of her psychological conditions. The employee also appeals the denial of her claim for permanent partial disability for her psychological conditions and the denial of payment for the massage therapy.
The compensation judge found the employee’s personal injury was not a substantial contributing cause of her psychological conditions. The employee asserts this finding is not supported by substantial evidence. The employee acknowledges she had psychiatric counseling and treatment prior to the injury, and has struggled with abusive relationships and chemical dependency. The employee was, however, able to work for the employer for several years prior to her personal injury on a full-time basis. At the time of the personal injury, the employee was receiving no treatment for her psychological conditions. The employee argues there is no evidence her pre-injury psychological conditions affected her ability to work prior to her personal injury. The employee asserts the compensation judge ignored these facts in denying her claim. Further, the employee argues there is ample medical evidence from Drs. Cronin and Karayusuf that the employee’s personal injury substantially contributed to the development of her psychological conditions of depression with post-traumatic stress disorder and somatoform disorder. Accordingly, the employee asserts the compensation judge’s causation finding is unsupported by substantial evidence and must be reversed. We disagree.
Dr. Thomas Gratzer examined the employee on two occasions, October 2006 and February 2008, at the request of the respondents. In his initial report, the doctor concluded the employee had pre-existing psychiatric conditions which he stated had their etiology in a markedly dysfunctional and abusive childhood and abusive relationships as an adult. Dr. Gratzer concluded the employee developed an adjustment disorder with depressed mood following her personal injury but opined this condition resulted from mental stresses rather than the physical stresses of the personal injury. In his February 2008 report, Dr. Gratzer stated the employee’s psychological diagnoses reflect characterological dynamics related to a dysfunctional family system and psychosocial factors rather than the personal injury. While Drs. Cronin and Karayusuf opined otherwise, the reports of Dr. Gratzer support the compensation judge’s conclusion that the personal injury was not a substantial contributing factor to the employee’s symptoms of and treatment for depression, post-traumatic stress disorder, and somatoform disorder. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employee argues the opinions of Dr. Gratzer lack foundation and the compensation judge improperly relied upon them. We disagree. Dr. Gratzer reviewed the employee’s extensive medical records, obtained a history from the employee, and conducted a mental examination. We have, on many occasions, stated this level of knowledge constitutes adequate foundation for an expert opinion. See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988). Accordingly, the compensation judge’s finding on causation is affirmed.
2. Permanent Partial Disability
The parties stipulated at the hearing that the employee has been vocationally permanently and totally disabled since the day after she received 104 weeks of temporary total disability benefits. At issue, however, is whether the employee has the requisite 17% permanent partial disability to qualify for permanent total disability pursuant to Minn. Stat. § 176.101, subd. 5.(2)(a). The parties stipulated the employee was previously compensated for a 12% permanent partial disability for a low back condition arising out of the personal injury. In the March 2009 Findings and Order, the compensation judge awarded the employee an additional 4% permanent partial disability for a fracture of the coccyx. The employee, therefore, has a total of 16% permanent partial disability, 1% less than statutorily required for receipt of permanent total disability benefits. Since we have affirmed that none of the employee’s psychological conditions were substantially caused by the personal injury, no permanent partial disability benefits are in issue. However, any ratable permanent partial disability will satisfy the criteria of Minn. Stat. § 176.101, subd. 5, whether or not that permanent disability results from a work related injury. Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997), summarily aff’d (Minn. Oct. 28, 1997). The appellant contends with the 16% permanent partial disability caused by the work injury and the permanent partial disability due to her psychological conditions combined, she meets the statutory threshold.
The compensation judge found the employee has “major depression, recurrent, severe, with elements of post-traumatic stress disorder” and found that “one of the employee’s emotional diagnoses is somatoform disorder.” (Findings 16, 17.) These findings are unappealed. The compensation judge, however, found that on the employee’s date of injury, the permanency rule in effect allowed a rating for an emotional condition only if it was caused by an organic brain injury. Since the employee neither claimed nor proved an organic brain injury, the compensation judge denied her claim of a ratable permanent disability for her psychological conditions.
In Makowsky v. St. Mary’s Med. Ctr., 62 W.C.D. 400 (W.C.C.A. 2002), the employee claimed a 20% permanent partial disability for non-work-related psychological conditions of anxiety, panic attacks, and depression. The compensation judge denied the claim and found the employee failed to prove she had signs or symptoms of organic brain dysfunction under Minn. R. 5223.0360, subp. 7.D.(1). On appeal, this court vacated the compensation judge’s finding that the employee was not entitled to a permanent disability rating for her psychological conditions. The court held that while signs or symptoms of organic brain dysfunction are required under the rules for a rating under the brain dysfunction rule, a permanent partial disability rating for an emotional/psychological condition does not require proof of organic brain dysfunction. There is no schedule in the disability schedules rating permanent partial disability for psychological conditions not due to organic brain dysfunction. Since a non-scheduled injury, by definition, falls outside the permanent disability schedules, there is no requirement that any particular category in the schedule be applied or that the injury meet the specific requirements of any given category. See Crain v. Riverview Healthcare Ass’n, slip op. (W.C.C.A. Nov. 9, 1998). Permanent partial disability for a condition not rated by the disability schedules is, instead, governed by Minn. Stat. § 176.105, subd. 1.(c) and Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).
The respondents, nonetheless, argue the compensation judge’s denial of permanent partial disability benefits for the employee’s psychological conditions is supported by substantial evidence. Dr. Thomas Gratzer examined the employee on behalf of the employer and insurer and diagnosed a depressive disorder not otherwise specified and undifferentiated somatoform disorder. The doctor opined the employee’s mild depressive symptoms did not rise to the level of a psychiatric impairment and concluded the employee had no permanent partial disability. The respondents assert the medical opinions of Dr. Gratzer support the compensation judge’s denial of the claimed permanent partial disability. We disagree.
Dr. Gratzer opined the employee does not have a major depression but rather is struggling with characterological dynamics associated with her mixed personality features. The compensation judge, however, did not accept Dr. Gratzer’s diagnosis and found the employee suffered from major depressive disorder, recurrent, severe, with elements of post-traumatic stress disorder, and a somatoform disorder. Since Dr. Gratzer did not diagnose or rate permanent disability for any of these conditions, his opinion that the employee has no ratable permanent disability is of little evidentiary value.
We, accordingly, vacate the compensation judge’s findings denying the employee a rating for her depression, post-traumatic stress disorder, and somatoform disorder. The case is remanded to the compensation judge to determine the appropriate permanent disability rating or ratings for the employee’s psychological conditions.
3. Massage Therapy Treatment
The compensation judge denied payment of bills from Massage Energy Therapy after October 2, 2007, finding there was no prescription for the treatment. In dispute, the employee asserts, are six visits between October 5, 2007, and March 14, 2008. The employee contends there is substantial evidence of record supporting an award of payment for this treatment.
The issue with respect to the claimed medical expenses is whether they were reasonable and necessary to cure or relieve the employee from the effects of the personal injury. Whether or not medical treatment has been prescribed by a physician is a factor that the compensation judge may consider in determining the reasonableness and necessity of claimed medical expenses, but it is not a requirement. Further, a note from Dr. Pinto’s office dated November 27, 2007, states, “She [the employee] is also following with a physical therapist for soft tissue release, trigger point therapy, connective tissue and deep tissue massage. A request was sent from the massage therapist asking for this to be continued, and Dr. Pinto did authorize this for one time per week times three months.” (Pet. Ex. I.) On remand, the compensation judge shall reconsider the employee’s claim for the massage therapy.