SCOTT C. TRAUTNER, Employee/Appellant, v. STATE, MINNESOTA HIGHWAY PATROL, SELF-INSURED, Employer/Cross-Appellant, and ABBOTT NW. HOSP., INSTITUTE FOR LOW BACK AND NECK CARE, HEALTHPARTERS, INC., and ST. PAUL RADIOLOGY/EAST METRO IMAGING, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 12, 2010
CAUSATION - MENTAL STRESS. Substantial evidence supports the compensation judge’s finding that the employee’s psychological injury was not compensable under the decision in Lockwood v. Independent Sch. Dist. #877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981).
Determined by: Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Adam S. Wolkoff
Attorneys: Ronald F. Meuser and Jennifer Yackley, Meuser & Assocs., Eden Prairie, MN, for the Appellant. Kenneth H. Chun, State of Minn., St. Paul, MN, for the Cross-Appellant.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that his work-related post-traumatic stress disorder and depression are not compensable injuries. The employer cross-appeals from findings that the employee’s depression was work-related and was a factor in his receipt of medical retirement benefits. We affirm.
Scott Trautner became employed as an officer for the Minnesota State Highway Patrol [MSP] in 1985. He was employed there in a variety of assignments until he was placed on medical retirement in December 2005.
The employee was subjected to a number of stressful incidents in his work as a state trooper. These incidents included pursuits in which the suspect was killed, either in a motor vehicle accident or, in two instances, when the suspect shot himself when confronted or, in one case, when the suspect was shot by another trooper while pointing a gun at the employee. In August 1994, the employee was compelled to shoot and kill a suspect when a firearm was pointed at him. It was subsequently determined the suspect was unarmed and had committed “suicide by cop.” On two occasions, other peace officers who were friends of the employee were killed in the line of duty. On one of those occasions, the employee was present when his friend’s wife learned that her husband had been killed. The employee was also the subject of an allegation of brutality that resulted in a federal lawsuit and trial before the employee was ultimately cleared.
The employee was assigned for a time to accident investigation and reconstruction. He testified to an incident in January 2000, where two people were identified as having been killed in a vehicle. Another person who later died was discovered in the vehicle after the employee had been at the scene for some time. The employee was upset about this incident because he felt he might have been able to save the person if he had acted sooner. In November 2003, the employee investigated an accident scene where a child had been run over by a school bus. The employee testified that he still recalled the gruesome scene and how he had to struggle with the child’s grandmother to prevent her from seeing what had happened to her grandchild. In addition to these specific incidents, the employee testified that in his work he saw more than 400 fatalities. He said that he had never addressed his emotions from these experiences but rather, tried to deny them.
After a pursuit in October 2004 in which the suspect died when his vehicle crashed, the employee apparently began crying at the scene. He testified that he felt responsible for the death because he felt he was pushing the pursuit too hard. He was placed on administrative leave and told to see a psychologist before returning to work.
On October 13, 2004, the employee met with Mark Stewart, a psychologist in the employee assistance program at Behavioral Health Services. The record from that visit is not in evidence but Mr. Stewart wrote to the employee’s supervisor after the visit to advise that the employee’s “response to the high-speed chase incident is consistent with what would be expected of a normal person in such a situation. His functioning, while somewhat compromised initially, does not appear to be impaired at this time.” The employee was authorized to return to work but a subsequent visit with Mr. Stewart was recommended. After that visit, the employee was encouraged to see Mike Campion, a therapist experienced in working with police officers, but there is no evidence that any such appointment ever took place.
The employee apparently returned to duty but was placed on administrative leave again in May 2005 after allegations were made that he had committed a sexual assault. The employee was ultimately convicted of first degree sexual assault, was incarcerated from July 2006 to January 2007, and was placed on probation for thirty years. The employee never returned to work for the MSP.
In June 2005, the employee began seeing Mark Fastner, a therapist at HealthPartners Behavioral Health in Woodbury. At the initial visit on June 27, Mr. Fastner noted that the employee complained of “depressed mood, crying spells, difficulty falling asleep, early a.m. wakening, fatigue, impaired concentration, suicidal ideation.” An assessment of post-traumatic stress disorder [PTSD] was made and the employee began seeing Mr. Fastner on a regular basis.
At Mr. Fastner’s recommendation, the employee saw his family doctor, Dr. Mark Stolpe, who diagnosed situational depression and PTSD, advised the employee to see a psychiatrist, and prescribed Prozac. On July 6, 2005, Dr. Stolpe took the employee off work for depression and PTSD. The employee was hospitalized on July 22 because of concerns over the employee’s suicidal thoughts. The employee came under the care of a psychiatrist, Dr. Richard Kennedy, and he has treated with Dr. Kennedy since then. Dr. Kennedy’s diagnosis was and has continued to be major depressive disorder and PTSD.
The employee was placed on medical retirement pursuant to Minn. Stat. § 352B.10 as of December 27, 2005, and he has been receiving those benefits since that time.
The employee filed a claim petition in May 2008 alleging work-related PTSD which culminated on October 14, 2004. A hearing on the employee’s claim was held on March 11, 2010, before Compensation Judge Adam Wolkoff.
In addition to the employee’s claims against the MSP for his work-related PTSD, the compensation judge also considered issues at the hearing relating to a work-related motor vehicle accident in 1988 while the employee was employed by the MSP and a work-related slip and fall in March 2008 when the employee was employed part-time as a delivery driver for Carbone’s Pizza. In an unappealed finding, the compensation judge determined that the 1988 motor vehicle accident was not a substantial contributing factor in the employee’s claimed disabilities and expenses and assessed responsibility for a number of physical impairments against Carbone’s Pizza for the 2008 injury. Subsequent to the issuance of the findings and order on May 24, 2010, the employee and Carbone’s Pizza entered into a settlement of all claims relating to the 2008 injury. No issues from the 1988 or 2008 injury are before this court.
The issues before this court are whether the employee developed PTSD as a result of his employment as a trooper for the MSP, and whether, if so, the PTSD represents a personal injury which is covered by the Minnesota Workers’ Compensation Act.
The employee, in addition to testifying as to the incidents previously recounted in this decision, presented medical records and narrative reports from Dr. Kennedy and Michael Richardson, a licensed psychologist who performed an evaluation at Dr. Kennedy’s request.
Mr. Richardson evaluated the employee on June 24, 2009, and prepared a report on that date. Mr. Richardson briefly reviewed the employee’s history in his report and then related the results of psychometric testing administered to the employee. A test was given to assess the employee’s “attentional capabilities.” Mr. Richardson concluded that the employee was experiencing “significant attentional problems that affect concentration and cognitive efficiency.” Mr. Richardson stated that the employee “currently meets diagnostic criteria for 294.9 cognitive disorder secondary to the effects of post-traumatic stress disorder and major depression. This condition manifests with objectively verifiable impairment in processing speeds and attentional capabilities.” Mr. Richardson’s overall assessment was that the employee had “post-traumatic stress disorder” and “major depression, chronic, recurrent.”
In response to questions from the employee’s attorney, Mr. Richardson opined that the employee’s work as a trooper was a substantial contributing factor in the development of these conditions. He recommended future care to consist of “pharmacological intervention” and “ongoing individual psychotherapy.” Mr. Richardson also provided a rating of permanent partial disability and stated that in his opinion the employee was not able to engage in substantial gainful employment.
In his July 2009 report, Dr. Kennedy expressed his agreement with Mr. Richardson’s findings and conclusions. In a letter of January 28, 2010, to the employee’s attorney, Dr. Kennedy commented on the physical consequences of the employee’s psychological condition. He stated that, “I feel that at this time he is at a higher risk for headaches, fatigue, and dizziness along with chest pain, likely exacerbated by anxiety or depression from his psychological injury.” Dr. Kennedy noted that the employee also suffered from erectile dysfunction which he said was often a symptom of depression as well as a result of anti-depressant medication.
Dr. Kennedy discussed treatment and whether the physical condition could be treated separately from the psychological condition. He stated, “I think they certainly can be treated separately, but I think with the close link that there is between the psychological condition and his physical ailments, the best approach would definitely be a combined approach treating the physical conditions along with the psychological aspect.”
Dr. Kennedy also reviewed the question of whether the employee’s psychological condition had resulted in a physiological change in the brain. He said, “I do believe that there are probable changes in the brain with regards to norepinephrine, seratonin and dopamine levels. Unfortunately, these are not things that we have the ability to truly measure at this time to be able to confirm such, I would note, however, that his response to anti-depressant medication certainly suggests that abnormalities of the above have existed as a result of his trauma.”
The employee was also evaluated by a psychiatrist, Dr. John Rauenhorst, on behalf of the MSP on September 16, 2009. Dr. Rauenhorst diagnosed PTSD and “major depressive disorder - single episode, in partial remission.” He concluded that the causes of the PTSD “were Mr. Traunter’s basic personality and the traumatic events at work.” He identified the cause of the depression as being his “genetic makeup” and the criminal charges the employee faced for sexual misconduct. Dr. Rauenhorst believed that the employee should not return to patrol work for the MSP but was otherwise not in need of restrictions or treatment for his PTSD. He recommended therapy and medication for treatment of the employee’s depression.
The employee was also seen by Dr. Thomas Gratzer at the request of Carbone’s Pizza on March 3, 2010. Dr. Gratzer reviewed in detail the medical records related to the employee’s physical and psychological treatment. Dr. Gratzer diagnosed, “post-traumatic stress disorder by history” and “major depressive disorder, recurrent, in partial remission.” Dr. Gratzer agreed with Dr. Rauenhorst that the employee’s PTSD was related to his employment with the MSP and the depression was related to the criminal charges made against him. Dr. Gratzer did not believe that the employee needed any restrictions because of the psychological conditions. He also questioned the chronicity of the PTSD diagnosis, noting this condition was “highly treatable.”
In his findings and order, the compensation judge concluded that the employee’s PTSD and depression condition resulted from the mental stresses sustained by the employee in connection with his work for MSP as a state trooper. The compensation judge decided however these conditions were not compensable personal injuries and denied the employee’s claims. The employee appeals. The employer MSP cross-appeals from the determination that the employee suffered from work-related depression.
Work-related mental stress resulting in psychological impairment is not a compensable personal injury under Minnesota law. Lockwood v. Independent Sch. Dist. #877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981).
The compensation judge concluded that the Lockwood decision required a denial of the employee’s claims. On appeal, the employee contends that the compensation judge erred in doing so and argues that his claim is consistent with Lockwood. The employee claims that he has a compensable personal injury because his psychological condition resulted in physical consequences. For authority, the employee cites to the line of cases which follow Aker v. State of Minnesota, Dep’t of Natural Resources, 282 N.W.2d 533, 32 W.C.D. 50 (Minn. 1979) and Egeland v. City of Minneapolis, 344 N.W.2d 597, 36 W.C.D. 465 (Minn. 1984).
In his first argument, the employee claims that his PTSD has resulted in a physical injury to his brain which makes his condition compensable. The employee relies on the opinions of Dr. Kennedy and Mr. Richardson. The medical evidence presented in this case does not support the employee’s argument. It is true, as the employee argues, that Mr. Richardson states in his report that the employee has an “objectively verifiable impairment,” but that conclusion does not mean that a physical injury to the brain is the cause of the impairment. Dr. Kennedy speculated that there were “probable” changes in the chemical levels of the brain but he also stated that “these are not things that we have the ability to truly measure at this time to be able to confirm such.” (Emphasis added). We conclude that the extent of chemical change is simply not known in this case. More importantly, there is no evidence here that the employee’s disability is the result of these possible chemical changes, rather than the underlying psychological condition, PTSD.
The employee also argues that the physical conditions identified by Dr. Kennedy: headaches, fatigue, dizziness, chest pain, and erectile dysfunction result in a compensable injury. We disagree. First, in order to find a compensable physical injury resulting from mental stress, the physical impairment must be capable of discrete treatment apart from any treatment of psychological impairment. Johnson v. Paul’s Auto & Truck Sales, Inc., 409 N.W.2d 506, 40 W.C.D. 137 (Minn. 1987). The employee’s treatment for his erectile dysfunction and his other physical symptoms has consisted of treatment for his psychological condition. In his January 28, 2010, letter to the employee’s attorney, Dr. Kennedy specifically addressed this question and stated, “the best approach would definitely be a combined approach to treating the physical conditions along with the psychological aspect.” Secondly, the existence of a physical consequence which is separately treated does not make the underlying psychological impairment compensable. In Aker, Egeland, and related cases from this court, the compensable disability is the result of the physical consequence and not the underlying psychological condition. See Pettis v. United Parcel Serv., 42 W.C.D. 1213 (W.C.C.A. 1990) and Perdue v. Independent Sch. Dist. #625, slip op. (W.C.C.A. May 12, 1998). Here, the employee seeks to make the psychological condition into the disabling condition.
Based on the evidence presented at the hearing, the compensation concluded that the employee did not establish a disabling physical injury that followed from his PTSD. Substantial evidence supports the compensation judge’s decision on this issue. The employee’s PTSD and depression represent mental disabilities under well-established Minnesota case law and are not compensable personal injuries. See Miller v. Yellow Freight Sys., slip op. (W.C.C.A. Jan. 4, 1995); Dunn v. US West Commc’ns, 52 W.C.D. 682 (W.C.C.A. 1995); Williams v. Twin Cities Stores, Inc., 66 W.C.D. 293 (W.C.C.A. 2006).
The employer has cross-appealed findings by the compensation judge that the employee’s depression was caused by his employment. The employer also cross-appealed a finding that the employee was placed on medical retirement as a result, in part, of the employee’s depression. Given our decision as to the compensability of the employee’s claim, these issues are moot.
The compensation judge’s decision is affirmed.