MYUNG S. KIM, Employee/Appellant, v. MONEYGRAM INT’L, INC., and SENTRY INS. GROUP, Employer-Insurer, and MINNEAPOLIS CLINIC OF NEUROLOGY, NORTHWEST FAMILY PHYSICIANS, and BLUE CROSS BLUE SHIELD OF MINN., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 14, 2011
CAUSATION - PSYCHOLOGICAL CONDITION. Substantial evidence, in the form of a well-founded medical opinion, supports the compensation judge’s denial of the employee’s claim for psychological counseling.
Determined by: Stofferahn, J., Johnson, J., and Wilson, J.
Compensation Judge: Paul V. Rieke
Attorneys: Neil G. Clemmer and Gary L. Manka, Katz, Manka, Teplinsky, Graves & Sobol, Minneapolis, MN, for the Appellant. David J. Klaiman and Julia J. Douglass, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s denial of her claim for psychological counseling. We affirm.
The employee, Myung Kim, was employed by Moneygram International as a customer service representative in April 2007 when she claims to have sustained a back injury as a result of her employment.
The employer and insurer sent Ms. Kim for an independent medical examination [IME] with Dr. Steven Saliterman, an internist, on October 17, 2007. No nurse or other woman was present during the physical examination. Ms. Kim was told to disrobe completely, to put on a gown, and to lie on the examining table. Dr. Saliterman put his hands under her gown and placed them on her breasts. Ms. Kim objected to this but was told it was a required part of the examination. When Ms. Kim left the office, she saw two female employees of Dr. Saliterman laughing and concluded they were laughing at her. Immediately after the examination, Ms. Kim sent an email to her supervisor expressing her unhappiness with the examination and with Dr. Saliterman placing his hands on her breasts. She stated, “I feel very dirty and still don’t understand why I treat like this way.”
In responding to an inquiry from the agency that arranged for the IME, Dr. Saliterman stated that he treated Ms. Kim, “with the utmost of dignity and respect.” He stated that the breast exam was necessary to rule out other possible causes, such as breast tumors, as explanations for her complaints. He did not explain why he did not feel it necessary to have a nurse present during the examination.
The employee claimed the contact by Dr. Saliterman constituted a personal injury compensable under the Workers’ Compensation Act. She sought payment for counseling services she received from Behavioral Health Services [BHS] between February 2, 2009, and March 11, 2010. The intake evaluation at BHS indicates that Ms. Kim’s recent symptoms included “nightmares, anxiety, sleep disruption, appetite changes, difficulty concentrating, hopelessness, feelings of shame, hyper-vigilance, and anhedonia.” According to her history, the symptoms began after the exam in October 2007. In Ms. Kim’s initial consultation with her treating psychiatrist, she provided additional details regarding her psychological condition. Her treating psychiatrist diagnosed “PTSD, prolonged, MDD, single episode, moderate.” Ms. Kim received therapy at BHS and subsequent diagnoses were PTSD and panic disorder.
Ms. Kim’s attorney had her evaluated by Linda Ledray, a Ph.D. with extensive experience in dealing with victims of sexual assault. In her report of February 14, 2010, Dr. Ledray discussed Ms. Kim’s cultural background. It was noted that Ms. Kim had moved to the United States from Korea in 1974 when she was approximately 30 years old and that she continued to hold many traditional values such as believing that women should do what men, especially those in authority, tell them to do and that if a woman is sexually assaulted, it is her fault. She blamed herself for not objecting sufficiently to Dr. Saliterman’s examination. Dr. Ledray commented that Ms. Kim is “clearly caught between two cultures. She was tearful as she reported regret for not standing up for herself.”
Dr. Ledray concluded that the IME on October 17, 2007, “had a distinct and significantly negative impact on Myung Kim. It has affected her psychological and social wellbeing and it has negatively impacted her health. As a result, she has continued to experience post traumatic stress disorder and major depressive disorder.” Dr. Ladray stated Ms. Kim would require intensive therapy, a minimum of one hour per week for at least three years.
The employer and insurer had Ms. Kim evaluated by Dr. Thomas Gratzer, a psychiatrist, on April 7, 2010. He prepared a report with his conclusions dated April 21, 2010. Dr. Gratzer had available to him Ms. Kim’s medical records, including the report from Dr. Ledray. His opinion was that Ms. Kim had not developed PTSD as a result of the IME with Dr. Saliterman. In Dr. Gratzer’s opinion, PTSD develops “as a response to a life-threatening event.” Further, Dr. Gratzer questioned the time between the IME and the first treatment for the claimed psychological condition in February 2009. Dr. Gratzer was also of the opinion that Ms. Kim had not experienced any psychological impairment as a result of the IME, did not have any psychiatric condition as of the date of his evaluation, and did not require mental health treatment.
Ms. Kim’s claim for payment of counseling at BHS was heard by Compensation Judge Paul Rieke on November 8, 2010. In his findings and order of November 22, 2010, Compensation Judge Rieke denied the employee’s claims. The compensation judge determined that there was no physical injury at the IME in October 2007 and that the IME did not result in a mental injury. The compensation judge accepted Dr. Gratzer’s opinion that the events at the IME were not “substantial contributing factors to any mental, emotional, psychological, or psychiatric symptoms experienced by the employee after October 17, 2007.” The employee appeals.
On appeal, the employee argues that the compensation judge erred in finding the employee did not sustain a physical injury at the time of the IME. The employee urges this court to adopt a rule that unwanted sexual contact constitutes a physical injury. Since she sustained a physical injury at the IME, the employee contends the present case is a “physical/mental” claim and is compensable under the decision in Lockwood v. Independent Sch. Dist. #877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981) and as discussed by this court in cases such as Trautner v. State, Minn. Highway Patrol, No. WC10-5125 (W.C.C.A. Nov. 12, 2010).
We conclude, however, the issue raised by the employee is not the determinative issue before us. Even if we were to accept the employee’s argument, we still must deal with the compensation judge’s finding that the IME was not a substantial contributing factor to any psychological or mental symptoms experienced by the employee after that date. In making that finding, the compensation judge accepted Dr. Gratzer’s opinion. The employee does not address this finding on appeal.
In rendering his opinion, Dr. Gratzer reviewed the employee’s medical records, including the report from Dr. Ledray, considered psychological testing done by Dr. Marvin Logel, and conducted an interview. This is generally considered sufficient background information to establish foundation for a medical opinion. Kelsey v. Lovegreen Indus. Servs., No. WC07-159 (W.C.C.A. Dec. 12, 2007). In this case, the compensation judge had two competing medical opinions as to whether the October 2007 IME was a substantial contributing factor in the employee’s need for counseling. We have said in numerous cases that making this choice is uniquely for the compensation judge and a decision based on a well-founded medical opinion will generally be affirmed by this court. Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003).
We are troubled with what happened in this case. The lack of gender and cultural sensitivity shown to Ms. Kim is disturbing. However, given this court’s standard of review, we have no option but to affirm the compensation judge’s denial of the employee’s claim.