APRIL 18, 2013

No. WC12-5486


CAUSATION - PSYCHOLOGICAL INJURY; MENTAL INJURY.  Substantial evidence supports the compensation judge’s determination that the employee’s post-traumatic stress disorder was not compensable under Lockwood v. Independent School District No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981).


Determined by:  Milun, C.J., Stofferahn, J., and Hall, J.
Compensation Judge:  Danny P. Kelly

Attorneys:  Michael L. Garbow, Rodgers & Garbow, Bemidji, MN, for the Appellant.  Thomas L. Cummings and Allsion A. Walsh, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, MN, for the Respondent.




The employee appeals the compensation judge’s determination that the employee’s post-traumatic stress disorder represents a mental disability that is not compensable under Minnesota workers’ compensation law.  We affirm.


On June 23, 2005, Scott B. Schuette, the employee, was working as a police officer for the City of Hutchinson, the employer, which was self-insured for workers’ compensation liability, administered by Berkley Risk Administrators Company.  The employee responded to an emergency call at the Hutchinson High School involving a twelve-year-old girl who had fallen out of a pick-up truck, hitting her head on the pavement.  When the employee arrived, he and another officer tried to resuscitate the girl.  The employee then realized that he knew the girl and her family.  The employee also drove the ambulance to the hospital.  The girl was airlifted to another hospital, where she was pronounced dead.  While still at the hospital, the employee felt sick and experienced “dry heaves.”  After the incident, the employee participated in police department debriefing sessions.

The employee and his wife testified that after the incident, the employee experienced a variety of symptoms, including difficulty sleeping, nightmares, anxiety, panic attacks, mood swings, irritability, flashbacks, headaches, hyper-vigilance, and forgetfulness, but that he did not seek treatment for these symptoms for about three years.

On June 12, 2008, the employee was treated by Dr. Douglas Wagoner, his primary physician, at the Lester Prairie Medical Clinic, Glencoe Regional Health Services.  Dr. Wagoner diagnosed the employee with chronic anxiety, possible post-traumatic stress disorder (PTSD), and depression, and prescribed medication.  In June 2008, the employee was also referred to Dr. Lowell Campbell for a psychological evaluation to determine whether he was fit for work.  Dr. Campbell determined that the employee was fit for work, but diagnosed PTSD and depression, and recommended therapy and a chemical health evaluation for his use of alcohol.

In November 2008, the employee was staying at a cabin when he fell out of a loft bed, injuring his shoulder and back.  The employee testified that he would often try to get out of bed and run while sleeping, and that this was related to his PTSD symptoms.  The employee went to therapy with Scott Banda, a social worker, starting in November 2008 and continuing through February 2009 for PTSD, anxiety disorder, and depression.

On December 3, 2008, the employee was evaluated by Dr. Russell Morfitt, a psychologist at Hutchinson Area Health Care, who diagnosed the employee with primary PTSD, secondary major depression, and generalized anxiety disorder.  Dr. Morfitt referred the employee to Dr. Glenn Lewis, Jr., a psychiatrist.  The employee was evaluated by Dr. Lewis on January 5, 2009, and began treating with him after that date.  Dr. Lewis agreed that the employee had primary PTSD and secondary major depression.  The employee was removed from his work duties for the employer in March 2009.

On April 9, 2009, the employee underwent an independent psychiatric evaluation with Dr. Thomas Gratzer, a psychiatrist, as part of his claim for disability benefits from the Public Employees Retirement Association.  Dr. Gratzer diagnosed the employee with PTSD and moderate to severe major depression.  Dr. Gratzer indicated that the employee was psychiatrically disabled from work.

Dr. Scott Wichterman, a neuropsychologist, evaluated the employee on October 1 and October 12, 2009.  The results were considered virtually normal with mild neurodevelopmental weakness for certain language-based skills, mild executive/attentional component, with a possible developmental etiology and psychiatric condition.  On October 22, 2009, the employee underwent a psychological evaluation by Dr. Mark Smith.  Dr. Smith diagnosed chronic PTSD and depressive disorder.

The employee underwent an independent psychiatric evaluation by Dr. Ronald Groat, a board-certified psychiatrist, at the employer’s request.  In a report dated March 16, 2010, Dr. Groat diagnosed PTSD, depressive disorder, possible anxiety disorder, and alcohol abuse.  He stated that PTSD may be “physical” and “it would be inaccurate to say that PTSD is simply a mental injury.”[1]  He opined that the employee’s November 2008 injury to his left shoulder and back was not related to his PTSD condition and that the employee could work outside of police work after some improvement.  Dr. Groat also opined that neuropsychological evaluations do not address any relation between PTSD and brain function.

In April 2010, the employee was evaluated by Dr. Brian Livermore, a family medicine practitioner and Ph.D., who diagnosed the employee with chronic severe PTSD, major depressive disorder, mild traumatic brain injury (from an accident occurring years earlier), and prior inappropriate alcohol use to self-medicate symptoms.  He stated that PTSD is found with diagnostic criteria, including a traumatic event, but that not all people who meet the criteria end up developing PTSD.  He also stated that neuropsychological testing is not the only way to confirm or deny the existence of PTSD.  He further noted that there are correlations from neuropsychological testing results and neurobiological findings, and that imaging studies can show structural associations between PTSD symptoms and brain anatomy.  Dr. Livermore opined that PTSD is a physical injury to the brain caused by the intense neuro-endocrine response to a threat, and that PTSD is more likely to occur in a person with a predisposed brain for a number of factors, including traumatic brain injury.  Dr. Livermore concluded that the employee sustained a work-related injury on June 23, 2005, as a result of a severe psycho-physiologic stress, resulting in PTSD.  He also stated that the injury substantially aggravated a pre-existing mild traumatic brain injury, resulting in current disability, and determined that the employee’s disability was due to a physical injury to his brain, that his left shoulder and back injuries were related to his PTSD, that his permanent partial disability rating was 53.5%, and that his ability to work was significantly reduced by his PTSD.

In May 2010, Dr. Lewis opined that the employee was disabled from work, which was directly related to his PTSD, as a result of the June 23, 2005, incident.  He also agreed with Dr. Livermore’s report that the employee sustained a work-related injury on June 23, 2005, as a result of severe psycho-physiologic stress, resulting in PTSD.

In August 2010, at his attorney’s request, the employee underwent a functional MRI (fMRI) and neuropsychological screening battery at the Applied fMRI Institute in San Diego, California.  Dr. David Hubbard, the neurology director at the institute, Adrian Owen, Ph.D., and Adam Hampshire, Ph.D., professors of neuroscience at the University of Western Ontario, signed a report interpreting the employee’s test results as consistent with frontal lobe pathology and not consistent with malingering.  Dr. Livermore reviewed the functional MRI report and neuropsychological screening in December 2010, and concluded that the finding of frontal lobe pathology supported his earlier conclusion that the employee suffered a physical injury to his brain as a result of the trauma he sustained on June 23, 2005.

At the employer’s request, Paul Arbisi, Ph.D., a clinical psychologist at the Veterans Administration Medical Center and a professor of psychology at the University of Minnesota, conducted an independent record review of the employee’s records.  In a report dated April 7, 2011, Dr. Arbisi challenged the employee’s diagnosis of PTSD on two grounds:  first, that the employee did not report symptoms for years after the traumatic incident, and second, that none of his evaluations used the clinician-administered scale for PTSD for the diagnosis.  He also noted that structural changes in the brain may be pre-existing vulnerability factors.[2]  Dr. Arbisi also opined that “the scientific evidence remains ambiguous and does not clearly support that exposure to trauma and the development of PTSD inevitably leads to a physical change in brain structure.”[3]  Specifically, he stated that “fMRI evaluation to localize deficits in brain regions has not demonstrated sufficient reliability or validity to be used as a diagnostic tool. . . .”[4]

In a May 5, 2011, report, Dr. Arbisi opined that there was no evidence that the employee incurred a physical injury to his brain as a result of the June 23, 2005, incident.  He also indicated that functional MRI images showing alterations are not specific to PTSD.

On June 14, 2011, at his attorney’s request, the employee underwent a neuropsychological assessment by Rodney Swenson, Ph.D., ABN, diplomate in clinical psychology, at Neuropsychology Associates.  Dr. Swenson found that the employee was “demonstrating neuropsychological abnormalities as a result of his ongoing and chronic, severe, posttraumatic stress disorder.”[5]  He opined that PTSD affects the brain and the body, and that “findings are now clear that the amygdala and anterior cingulate cortex of the brain can be both structurally and neurobiologically impacted.”[6]  He concluded that the employee’s “clinical complaints and objective test findings are consistent with what is encountered clinically in patients with neuropsychological deficits associated with chronic posttraumatic stress disorder.”[7]  He assigned the employee a 48% permanent partial disability rating.

In a report dated February 23, 2012, Dr. Livermore indicated that he had reviewed additional scientific literature, and reached the same conclusion regarding the employee’s injury.  He opined that PTSD causes significant impairment in psychosocial and cognitive functions which can be assessed by neuropsychological testing for memory impairment and deficits in attention, concentration, processing speed and performance.  He indicated that Dr. Swenson’s testing had found decreased cognitive ability.  He noted that all eleven health care professionals who examined the employee have diagnosed PTSD, and that only Dr. Arbisi, who did a record review, did not.  He also noted that any major depression would be part of the PTSD.

Dr. Groat, in a supplemental report dated March 8, 2012, again indicated that while the employee likely suffers from PTSD, he thinks that PTSD is not clearly a physical brain injury and does not cause a physical injury to the brain.  He agreed with Dr. Arbisi that there is no medical consensus that PTSD causes physical injury to the brain and no evidence that the employee has a physical injury to the brain since there is no comparison imaging available from before the injury in June 2005.  In addition, he stated that imaging is not used to diagnose psychiatric conditions.

Dr. Livermore responded to Dr. Arbisi’s report in a March 11, 2012, report, indicating that his opinion had not changed and challenging whether Dr. Arbisi was an expert in all the areas in which he gave opinions.

Dr. Arbisi conducted an additional records review in response to Dr. Swenson’s July 27, 2011, report and Dr. Livermore’s February 23, 2012, report.  He opined that mild traumatic brain injury is not a risk factor for PTSD, and that he was unconvinced that the employee suffered from PTSD since there was evidence in the employee’s medical records that he exaggerated symptoms and was considered non-credible in his responses to a psychological test.  In a March 12, 2012, deposition, Dr. Arbisi reiterated that the employee’s delay in reporting symptoms, inconsistency in presentation and self-reporting, and the lack of an evaluation with the clinician-administered scale were factors in his opinion that it was unclear that the employee had PTSD.  He stated that the “clinical diagnosis of PTSD is completely subjective.”[8]  He also opined that “PTSD is clearly an emotional injury or psychological injury.”[9]  He indicated that imaging is not used to diagnose PTSD and that Dr. Swenson did not perform sufficient validity testing in his evaluation.

A hearing on the employee’s September 3, 2009, claim petition was held before a compensation judge on March 14, 2012.  The employer submitted an additional report by Dr. Arbisi after the hearing.[10]  In the May 24, 2012, report, Dr. Arbisi opined that PTSD literature does not show structural change in the brain is caused by exposure to a traumatic event, but that the change could be a pre-existing vulnerability and could be associated with other disorders.  He also stated that there is nothing unique to PTSD regarding changes in EEG, fMRI, neuroendocrine profile, or brain chemistry and that there is a lack of consensus regarding associated brain changes with PTSD.  The compensation judge found that the employee’s PTSD represents a mental disability that is not compensable under Minnesota workers’ compensation law.  The employee appeals.


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.[11]  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.[12]  Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed.[13]  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.”[14]


The compensation judge found that the employee had developed symptoms consistent with PTSD after the June 23, 2005, incident and that he had been diagnosed with PTSD by doctors, psychiatrists, neuropsychologists, and clinical psychologists.  The judge also determined that PTSD is a mental disability which does not result in a physical injury and that it is not compensable under Minnesota workers’ compensation law.

On appeal, we are asked to determine if disability resulting from job-related stress is compensable under Minn. Stat. § 176.021, subd. 1, as a personal injury under circumstances in which the expert medical opinions conflicted over the diagnosis of the employee’s mental disability and whether the mental disability caused a physical injury.

Thirty-two years ago, the Minnesota Supreme Court considered the issue of compensability for mental injury in Lockwood v. Independent School District No. 877.[15]  The court classified compensation claims involving mental conditions into three groups:  mental trauma resulting in physical injury; physical trauma resulting in mental injury; and mental trauma resulting in mental injury.[16]  Concluding that coverage for mental-mental claims was not contemplated by the legislature, the court held that a mental injury caused by job-related stress without physical trauma is not a compensable claim under the Minnesota Workers’ Compensation Act.[17]  Since that time, employees with work-related mental injuries have struggled to fit often complicated set of facts into an expert narrative opinion that meets the Lockwood standard for receipt of compensation.[18]  In the present case, the appellant and respondent once again contend with trying to fit a complicated medical situation into one of two conflicting legal categories.

The Lockwood court recognized that its decision was contrary to the majority of jurisdictions.  Today, thirty-two states provide compensation in cases of mental stress with no physical injury.[19]  The comments in Larson’s Workers’ Compensation Law note that modern medical opinion no longer distinguishes between physical injuries and nervous or mental injuries.[20]  Larson’s cites a 1955 case supporting that the body’s physical structure is not just bones and tissues acting as mechanical objects, but is an interrelated, living, functioning organism.[21]  Evidence submitted in this case supported this position.[22]  Notwithstanding the fact that Lockwood seems to be an increasingly isolated position in workers’ compensation law, it remains the standard in Minnesota and this court reviews the present appeal in accordance with that decision.

In considering the evidence in the present case, the compensation judge was provided with competing medical opinions as to whether the employee’s claimed PTSD represented a physical injury or a mental condition.  To that end, the compensation judge was required to choose between mental and physical injury in dealing with malfunctions of the brain.  The judge found that the employee’s claim of PTSD represented a mental disability without physical injury and concluded that PTSD is not compensable under the Minnesota Workers’ Compensation Act.  Our court must affirm the compensation judge’s findings of fact unless they are “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”[23]  In keeping with the statute, we look at the entire record to see if the compensation judge’s findings had substantial evidentiary support.  Here the judge expressly accepted the opinions of Dr. Arbisi and Dr. Groat and found the employee’s symptoms consistent with post-traumatic stress disorder as an emotional disorder not classified as a physical injury to the brain.[24]  The compensation judge expressly rejected the opinions of Dr. Livermore and Dr. Swenson after carefully reviewing the opinions, reports and testimony of the doctors.

A compensation judge’s choice between conflicting medical expert opinions is generally upheld unless the facts assumed by the expert are not supported by the record.[25]  The facts assumed by Dr. Arbisi and Dr. Groat are supported by the record.  The compensation judge’s finding that the employee’s PTSD represents a mental disability causing no physical injury has substantial evidentiary support.  Thus the judge did not err in his determination that there was no compensable personal injury under well-established Minnesota case law.  Under the substantial evidence rule and in accordance with Lockwood, we affirm.

[1] Employee’s Ex. L, p. 10.

[2] Employer’s Ex. 1, deposition of Paul Arbisi, Ph.D., ex. 2, p. 13.

[3] Id. at 14.

[4] Id. at 10.

[5] Employee’s Ex. G, p. 10.

[6] Id.

[7] Id. at 9.

[8] Employer’s Ex. 1, p. 11.

[9] Id. at 14-15.

[10] Employer’s Ex. 36.

[11] Minn. Stat. § 176.421, subd. 1.

[12] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

[13] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

[14] Id.

[15] Lockwood v. Independent Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981).

[16] Id. at 926, 34 W.C.D. at 309; see also Egeland v. City of Minneapolis, 344 N.W.2d 597, 604, 36 W.C.D. 465, 476 (Minn. 1984) (citing the 1982 version of Larson’s Workers’ Compensation Law).

[17] Lockwood, 312 N.W.2d at 926-27, 34 W.C.D. at 310-11.

[18] See Johnson v. Paul’s Auto & Truck Sales, Inc., 409 N.W.2d 506, 40 W.C.D. 137 (Minn. 1987); Jaakola v. Olympic Steel, Inc., 56 W.C.D. 238 (W.C.C.A. 1996), summarily aff’d (Minn. Feb. 27, 1997); Dunn v. U.S. West Commc’n, 52 W.C.D. 682 (W.C.C.A. 1995), summarily aff’d (Minn. June 29, 1995); see also Trautner v. State, No. WC10-5125 (W.C.C.A. Nov. 12, 2010) (this court concluded that the employee’s PTSD and depression conditions represented mental disabilities under Minnesota law and were not compensable personal injuries); Miller v. Yellow Freight Sys., slip op. (W.C.C.A. Jan. 4, 1995) (employee denied compensation for PTSD under Lockwood) (citing Pettis v. United Parcel Serv., 42 W.C.D. 1213 (W.C.C.A. 1990)).

[19] Ramona P. Tanabe, Workers’ Compensation Laws as of January 2012, Table 9 (Workers Compensation Research Institute and International Association of Industrial Accident Boards and Commissions) (March 2012); see also 3 A. Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 56.04 (2012).

[20] Larson, Larson’s Workers’ Compensation Law § 56.04[1].

[21] Id. (citing Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (1955)).

[22] See Employee’s Exs. D, E, F, G, H, I, J, and K.  For example, Dr. Livermore opined that PTSD is a physical injury to the brain caused by the intense neuro-endocrine response to a threat, which damages part of the brain.

[23] Minn. Stat. § 176.421, subd. 1(3).

[24] Findings 4, 14.

[25]Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).