JOYCE L. BISSONETTE, Employee/Appellant, v. KOOCHICHING COUNTY, SELF-INSURED/MINNESOTA COUNTIES INS. TRUST, Employer.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 11, 2010
PERMANENT PARTIAL DISABILITY - DEPRESSION; PERMANENT TOTAL DISABILITY. On the evidence submitted, the compensation judge erred in finding the employee does not qualify for a permanent partial disability rating for her depression based on Minn. R. 5223.0360, subp. 7, or that the employee does not have functional loss for the purposes of a permanency rating based on an opinion that the employee has an ability to return to work, or that a rating is premature because the employee failed to establish that her psychological problems are unlikely to improve with treatment. As substantial evidence does not support the compensation judge’s determination that the employee failed to prove sufficient permanency to meet the requirements for permanent total disability benefits, the claim must be reconsidered.
Reversed and remanded.
Determined by: Johnson, C.J., Pederson, J., and Stofferahn, J.
Compensation Judge: Nancy Olson
Attorneys: Eric W. Beyer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant. Timothy P. Jung, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that the employee’s depression does not qualify for a permanent partial disability rating. We reverse and remand.
Joyce L. Bissonette, the employee, sustained a personal injury on February 7, 2007, while working for Koochiching County, the employer, then self-insured through the Minnesota Counties Insurance Trust. The self-insured employer admitted the employee sustained an injury to her shoulder and upper back, and paid the employee for a 2% permanent partial disability relative to the shoulder injury.
The employee has exhibited symptoms of depression and a sleep disorder since at least 1993. A July 1993 note from Dr. A. Marc Gorden reflects a diagnosis of chronic anxiety and borderline depression. In June 2000, Bradley Reiners PA-C reported the employee stated she was very depressed and somewhat anxious secondary to pain. Paxil was prescribed. The employee agreed she experienced depression prior to her work injury.
Following her personal injury, the employee obtained treatment at the Duluth Clinic for complaints of right shoulder and thoracic spine pain. The initial diagnosis was a rotator cuff strain with a possible labral tear. In July 2007, the employee was examined by Dr. Jeffrey Klassen, who diagnosed a high-grade partial thickness rotator cuff tear and AC arthrosis. Dr. Klassen recommended an acromioplasty, distal clavicle excision and rotator cuff repair, but found the employee was “exceedingly depressed” and advised he could not proceed with surgery until the employee had her depression under control. The employee saw Dr. Elizabeth Marchuk on July 23, 2007, for complaints of depression and insomnia. The doctor noted the employee was crying nonstop in the office. Dr. Marchuk prescribed Celexa and Ambien. In August 2007, Dr. Jeri Vergelt, the employee’s family physician, diagnosed mild major depression but opined the employee was stable enough for shoulder surgery. Dr. Klassen performed the surgery in January 2008.
The employee was seen by Dr. T. Scott Douglass, an occupational medicine specialist, on referral from Dr. Klassen on June 10, 2008. The employee completed a Zung Depression Screening Inventory which the doctor stated was consistent with moderate to marked depression. Dr. Douglass recommended the employee make arrangements for further psychiatric evaluation and treatment for her depression.
The employee filed a claim seeking payment for her anti-depressant and insomnia medications and a hearing was held before a compensation judge. In a findings and order filed July 15, 2008, Compensation Judge Bonovetz found the employee’s work injury did not cause or substantially aggravate any preexisting depression or insomnia from which the employee may have suffered. The compensation judge, however, ordered the employer to pay for medications to treat the employee’s depression and sleep disorder so that the employee could proceed with and recuperate from the shoulder surgery. No party appealed from the findings and order.
The employee returned to see Dr. Douglass on July 21, 2008, and reported she could not sleep through the night, had crying spells for no reason, and was tearful much of the time. In September 2008, the employee told Dr. Douglass that her mood was better since starting the anti-depressant medication and she was having more days without crying spells than with crying spells. In November 2008 and January 2009, Dr. Douglass again noted the employee continued to be tearful or crying throughout the entire interview. In March 2009, Dr. Samantha Crossley examined the employee, diagnosed depression, and increased the employee’s Celexa medication. That same month, the employee returned to Dr. Douglass who again recommended the employee seek further psychological evaluation and treatment. The employee testified she did not obtain any further psychological treatment because she had no insurance and could not afford to pay for treatment.
The employee was evaluated by John Graham, a licensed psychologist, in May 2009, as part of the employee’s application for Social Security Disability benefits. Mr. Graham reported he gave the employee “a small test to evaluate depression and it showed that she showed mild symptoms of depression.” Mr. Graham stated:
I believe that she can understand, retain and follow instructions without significant problems. She has the capacity to sustain attention, concentration, persistence and reasonable pace at entry-level work as far as her emotional and cognitive abilities are concerned. I also believe that she has the capacity to relate appropriately to brief and superficial contact with others, i.e., coworkers and supervisors. I believe that she has the ability to tolerate the stress and pressure of simple unskilled work on the basis of observations, that is, when her emotional and her cognitive abilities are concerned. She may indeed have some problems with pace and this may be indeed due to her physical problems, but I believe that from a psychological and emotional point of view that she would not have significant problem with attention, concentration, persistence or pace at entry-level work-like tasks.
(Resp Ex. 5.)
By report dated July 29, 2009, Dr. Douglass opined the employee had an impairment of function related to her depression which he rated at a 20% permanent disability under Minn. R. 5223.0360, subp. 7.D.(2), for mild emotional disturbance present at all times.
Dr. John M. Rauenhorst, a psychiatrist, reviewed the employee’s medical records and the report of Mr. Graham, and prepared a report dated September 21, 2009. In his report, the doctor opined,
Ms. Bissonette does not meet the statutory guidelines for any permanent partial disability. I would agree that the appropriate section is 5223.0360, Subp. 7, brain dysfunction. Ms. Bissonette would not fall under this category, in general, because she does not have “signs or symptoms for organic brain dysfunction.” However, it is my understanding that, using the Weber decision, one can use this section, if appropriate, in any case. Hence, the appropriate subsection would be (D). Under this section, Ms. Bissonette would not receive a rating in that her symptoms, while present, are not severe enough to qualify her for even the least serious section, i.e., (1), 10%. This is because Ms. Bissonette does not require the “intervention of a caregiver” at any time.
(Resp. Ex. 4.)
The employee filed a claim petition seeking permanent total disability benefits. In a findings and order filed November 23, 2009, the compensation judge found the employee was, vocationally, permanently and totally disabled. The judge found the employee was over age 50 when she was injured and had completed grade 12 in school. Under Minn. Stat. § 176.101, subd. 5(2)(ii), to qualify for permanent total disability benefits, the employee must have a permanent partial disability rating of the whole body of at least 15%. The compensation judge found the employee had a 2% whole body disability due to her shoulder injury and a 4% whole body disability for a compression fracture. The compensation judge accepted the opinion of Dr. Rauenhorst and determined the employee did not qualify for a disability rating for depression. Accordingly, the compensation judge found the employee did not meet the 15% permanent partial disability requirement of the statute and denied the employee’s claim for permanent total disability benefits. The employee appeals.
The compensation judge found that the employee is vocationally, permanently, and totally disabled due to the effects of her personal injury and this finding was not appealed. At issue, however, is whether the employee has the requisite amount of permanent partial disability under Minn. Stat. § 176.101 to qualify for permanent total disability benefits. The employee asserts she suffers from depression and the compensation judge erred in failing to award permanent partial disability for that condition under Minn. R. 5223.0360, subp. 7.D.(1) or (2); contends the compensation judge erred in relying on the opinions of Mr. Graham and Dr. Rauenhorst in denying permanent partial benefits; and contends the compensation judge erred in concluding the employee’s depression could improve with treatment and she was not yet at a point where a permanency rating was appropriate. For these reasons, the employee asks the findings of the compensation judge be reversed. The respondent concedes the employee does suffer from mild depression, but argues her level of depression is not sufficient to justify a rating. Further, the respondent contends the compensation judge properly chose between conflicting expert medical opinion and the judge’s choice of experts must be upheld on appeal.
A determination of permanent total disability requires a specified level of permanent partial disability as outlined in Minn. Stat. § 176.101, subd. 5. See Gluba v. Bitzan & Ohren Masonry, 735 N.W.2d 713, 67 W.C.D. 228 (Minn. 2007). In determining whether an employee has met the statutory threshold, permanent partial disability from any cause may establish entitlement to benefits whether or not that permanent partial disability is a factor in the employee’s wage loss or inability to work. Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997), summarily aff’d (Minn. Oct. 28, 1997); Metzger v. Turck, 59 W.C.D. 229 (W.C.C.A. 1999). In this case, the sole barrier to the employee’s award of permanent total disability benefits is her level of permanent partial disability.
In Makowsky v. St. Mary’s Med. Ctr., 62 W.C.D. 409 (W.C.C.A. 2002), the employee claimed entitlement to 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. 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. Therefore, permanent partial disability is rated under Minn. Stat. § 176.105, subd. 1.(c). In Norman v. Diamond Risk Corp., No. WC04-280 (W.C.C.A. Feb. 25, 2005), this court held that Minn. R. 5223.0360, subp. 7.D., was the section of the rules to be used in rating permanent partial disability for depression.
The compensation judge accepted the opinion of Dr. Rauenhorst and denied the employee’s claim. Were the issue in this case only a question of the compensation judge’s choice of medical experts, the decision of the compensation judge would normally be upheld. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). That choice, however, will not be upheld where the facts assumed by the expert are not supported by the evidence. Klapperich v. Agape Halfway House, Inc., 281 N.W.2d 675, 31 W.C.D. 641 (Minn. 1979). Dr. Rauenhorst did not examine the employee and offered no diagnosis of her condition. Thus, the only medical opinions in the case providing a diagnosis state the employee has depression. Dr. Rauenhorst opined the employee’s symptoms were not severe enough to qualify her for a permanent disability rating because the employee did not require the intervention of a caregiver at any time. The word “caregiver” is not defined by the rule. “Care” means “the services rendered by members of the health profession for the benefit of a patient. Called also treatment.” “Intervention” means the act of “interfering so as to modify” “specifically, any measure whose purpose is to improve health or to alter the course of a disease.” Dorland’s Illustrated Medical Dictionary 289, 911 (29th ed. 2000.) The employee required medical care to prescribe medications to treat her depression. This medical care constitutes intervention by a caregiver within the meaning of Minn. R. 5223.0360, subp. 7.D. The basis for Dr. Rauenhorst’s opinions that the employee has no permanent disability is contrary to the evidence. We conclude, therefore, that Dr. Rauenhorst’s report is not substantial evidence sufficient to support the compensation judge’s decision.
The compensation judge accepted the opinion of Mr. Graham that “the employee’s psychological problems would not cause significant problems with attention, concentration, persistence, or pace, at entry-level work-like tasks.” (Finding 9.) The judge concluded from Mr. Graham’s report that the employee “does not have functional loss due to her psychological problems.” (Finding 11.) In her memorandum, the compensation judge stated that “[a]lthough the employee has some problems with depression, that appear to be well managed with medication, the evidence at hearing did not support that these problems functionally affected the employee’s ability to work.” (Mem. at 5.) The employee contends Mr. Graham’s report does not support a denial of permanent disability benefits. We agree.
Permanent partial disability benefits are intended to compensate for permanent loss or impairment of bodily function and are in no way dependent upon wage loss or ability to work. Moes v. City of St. Paul, 402 N.W.2d 520, 39 W.C.D. 675 (Minn. 1987)(citing Tracy v. Streater/Litton Indus., 283 N.W.2d 909, 32 W.C.D. 142 (Minn. 1979)). A condition that meets the requirements for a scheduled permanent partial disability rating by definition constitutes functional impairment. Thus, if an employee qualifies for a permanent partial disability rating, the employee is presumed to have a functional impairment although that impairment may not impact employability. It is not a defense to a claim for permanent partial disability benefits to assert the employee is able to work.
Mr. Graham diagnosed the employee as having depression but opined she had the capacity to perform entry-level work given her emotional and cognitive abilities. Mr. Graham’s opinions were rendered in connection with the employee’s claim for Social Security Disability benefits and focused on the employee’s ability to work. Mr. Graham rendered no opinion with respect to whether the employee qualifies for permanent partial disability benefits under the Workers’ Compensation Act. The employee’s ability to perform entry-level work is not a basis to evaluate the extent of any permanent partial disability. We conclude Mr. Graham’s report does not support a denial of permanent partial disability benefits.
The compensation judge found the employee failed to prove her psychological problems were unlikely to improve with treatment and concluded a permanency rating was not yet appropriate. The respondent contends this finding is fully supported by the evidence as demonstrated by the fact that the employee improved when she was prescribed Celexa. Further, the respondent notes the employee has not regularly treated for her depression. The appellant asserts she has longstanding depression requiring medication and despite receiving treatment, her symptoms persist. The employee asserts the judge erred in concluding consideration of a permanent disability rating was premature.
In support of her decision, the compensation judge cited Martin v. C.F. Anderson Co., slip op. (W.C.C.A. Apr. 5, 1999). In the Martin case, the employee sought permanent partial disability for symptoms of depression and other emotional problems. The compensation judge denied the claim based upon the report of the independent medical evaluator who opined the employee’s depression was very treatable and the evidence that medication relieved the employee’s irritability and moodiness and, subsequent to treatment for depression, the employee continued working and was promoted at his job. In this case, the employee has a history of depression dating back to at least 1993. Her condition was sufficiently serious that Dr. Klassen would not perform surgery until the employee received treatment. Judge Bonovetz agreed and ordered the employer to pay for treatment for the employee’s depression. While the employee acknowledged her depression has improved with medication, she testified to continuing emotional problems and insomnia. This testimony is substantiated by the observations and records of her medical providers. Unlike the Martin case, there is no evidence here of a significant improvement in the employee’s symptoms with medication. More importantly, there is no evidence in this case that the employee’s condition would significantly improve with additional treatment. We find no substantial evidence supporting a conclusion that a permanent disability rating is premature because the employee’s condition may improve.
The bases for the compensation judge’s denial of permanent partial disability benefits for the employee’s emotional condition are not supported by substantial evidence. Accordingly, we reverse the findings of the compensation judge and the case is remanded for reconsideration of the employee’s claim for permanent partial disability benefits and new findings of fact.
 Paxil is indicated for the treatment of major depressive disorder and generalized anxiety disorder. Physicians’ Desk Reference 1535 (63rd ed. 2009).
 Celexa is a selective serotonin reuptake inhibitor (SSRI) indicated for the treatment of depression. Ambien is indicated for treatment of insomnia. Physician’s Desk Reference 1160, 2692 (63rd ed. 2009).
 Minn. R. 5223.0360, subp. 7.D.(1) and (2), provide:
D. Emotional disturbances and personality changes must be substantiated by medical observation and supported by psychometric testing. These disturbances may include irritability, outbursts of rage or aggression, absence of normal emotional response, inappropriate euphoria, depression, abnormal emotional interaction with others, involuntary laughter and crying, akinetic mutism, and uncontrollable fluctuation of emotional state. Primary psychiatric disturbances, including functional overlay, shall not be rated under this part:
(1) intermittent emotional disturbances requiring intervention by a caregiver are only present under stressful situations such as losing one’s job, getting a divorce, or a death in the family, ten percent;
(2) mild emotional disturbance is present at all times but can live independently and relate to others, 20 percent;
 See also Weber v. City of Inver Grove Heights, 461 N.W.2d 981, 43 W.C.D. 471 (Minn. 1990).