MYRA P. WILLIAMS, Employee/Appellant, v. TWIN CITIES STORES, INC., and MINNESOTA ASSIGNED RISK PLAN adm'd by BERKLEY RISK ADM'RS CO., Employer-Insurer, and NORAN NEUROLOGICAL CLINIC, MN DEP=T OF HUMAN SERVS., KENWOOD CHIROPRACTIC ARTS, BLUE CROSS & BLUE SHIELD OF MINN., PARK NICOLLET HEALTH SERVS., and NORTH MEMORIAL AMBULANCE SERV., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 7, 2006

 

No. WC05-260

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee did not sustain a physical injury as a result of the December 11, 2004, incident, where a vehicle crashed into the employer=s store but the employee was not struck by the vehicle, debris, or glass.

 

CAUSATION - PSYCHOLOGICAL INJURY.  Substantial evidence supports the compensation judge=s finding that the employee=s psychological injury was not compensable under the Minnesota Workers= Compensation Act under Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981), in which the Supreme Court barred claims where mental stress has produced mental injury.

 

Affirmed.

 

Determined by: Rykken, J., Wilson, J. and Johnson, C.J.

Compensation Judge: Paul V. Rieke

 

Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant.  Joseph G. Twomey, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s finding that the employee did not sustain a work-related physical injury on December 11, 2004, and did not sustain a mental injury, as a result of the December 11, 2004, incident, that is compensable under the workers= compensation act.  We affirm.

 

BACKGROUND

 

On December 11, 2004, Myra Williams, the employee, worked as a cashier for Oasis Market, a convenience store operated by Twin Cities Stores, Inc., the employer, which was insured for workers= compensation liability by the Minnesota Assigned Risk Plan, as administered by Berkley Risk Administrators Company.  The employee was also employed at that time as a nursing assistant at Jones Harrison Residence.  On December 11, 2004,  a driver of a car lost control of the car and crashed into a window of the Oasis Market as the employee was standing at the counter, with her back turned toward the window.  The employee heard the noise of the crash and stated that she immediately felt back and neck pain and headaches.  She also vomited after the incident.  The employee testified that she was not hit by the car or any debris from the crash.  She was taken by ambulance to North Memorial Medical Center, where she reported that she was in pain but could not localize that pain,^[1] was diagnosed with diffuse muscle strain, and was released the same day with a recommendation for rest and warm showers and a request to follow-up with her primary physician in 3-5 days.

 

The employee then treated at Kenwood Chiropractic with David L. Stussy, D.C., complaining of neck, back, and shoulder pain and headaches, as well as difficulty sleeping and concentrating.  When describing the crash to Dr. Stussy, the employee reported that she had felt glass flying on her, that she felt pain in her neck and low back, and that she was dizzy and disoriented and did not recall the exact details of the accident.  Although Dr. Stussy and his colleague, Dr. Natalie Doucette, treated the employee with acupuncture, adjustment and laser treatment, her symptoms did not improve.  Dr. Stussy concluded that the employee was totally disabled, and later referred her to the Noran Clinic, where she saw Dr. Michael Sethna on January 10, 2005.  Dr. Sethna diagnosed significant cervical and thoracic sprain/strain, headaches, and depression, and recommended additional diagnostic testing.  The results of a February 7, 2005, lumbar spine MRI were within normal limits.  A January 19, 2005, cervical spine MRI indicated a straightening of cervical lordosis and no evidence of disc herniation or nerve impingement.

 

The employee returned to the Noran Clinic on February 1, 2005, where she was examined by Dodie Downey Russell, M.S., R.N., C.N.P.  That examination indicated spasm in the cervical, mid back, and lumbar areas.  The employee reported increased multiple symptoms, including pain in her neck, shoulders and lumbar area, radiating into her stomach area; headaches; and tingling radiating into her left upper extremity.  The employee reported that she had great difficulty sleeping, and that she felt extremely fatigued and noted depression and anxiety.  At Ms. Russell=s recommendation, the employee underwent an MRI scan of her lumbar spine on February 7, which had normal results.  On February 8, 2005, Nurse Russell noted Aincreasing persistent post-traumatic cervical, thoracic and lumbar strain/sprain syndrome with paresthesias in the extremities, greater on the left.  She has severe cervicogenic headaches.@  She also expressed concern that the employee might have some underlying medical problem which could be contributing to her gastrointestinal symptoms, her fatigue and overall dysfunction, and asked her to contact her primary care physician and treating chiropractor about these issues and about obtaining medications for symptom relief.  Ms. Russell outlined potential treatment recommendations for the future, including an EMG, behavioral counseling for the employee=s post-traumatic stress, a pool exercise program and Medrol Dosepak.

 

In April 2005, the employee began treatment at Park Nicollet Clinic for depression.  She consulted Dr. Yue Feng, who had provided general medical care to the employee since October 2003.  Dr. Feng diagnosed major depression and post-traumatic syndrome, along with fibromyalgia and left knee pain perhaps due to patellofemoral syndrome.  Dr. Yue prescribed antidepressant medication, and referred the employee for psychotherapeutic counseling.  He also advised that the employee was totally disabled as a result of her depression and pain.  In June 2005, Dr. Feng opined that the December 11, 2004, incident was a substantial contributing cause of the employee=s depression.  He recommended that the employee remain off work at least between June 23 and August 8, 2005, due to her neck and back pain.

 

On May 12, 2005, the employee was evaluated by Dr. Bruce Van Dyne at the employer and insurer=s request.  Dr. Van Dyne opined that the employee=s pain complaints were not substantiated by objective findings at the time of examination, or by diagnostic studies, and that there was no reasonable mechanism by which the employee could have sustained the claimed injury.  He concluded that the employee=s claims were not caused by any definable injury, that the employee did not need any further medical care, and that she did not have any disability or permanency.

 

On September 5, 2005, the employee underwent a psychological evaluation with Dr. Thomas Gratzer.  At that evaluation, the employee described the December 11, 2004, incident as feeling a Agreat force,@ being thrown forward, and losing consciousness for a minute.  The employee also indicated that she was stressed by her employment, financial concerns, and parenting concerns.  Dr. Gratzer diagnosed a pain disorder and adjustment disorder with mixed anxiety and depressed mood.  He concluded that the employee=s pain complaints were not supported by objective findings.  Dr. Gratzer also opined that the employee did not develop any psychiatric sequelae from physical stressors of the December 11, 2004, incident.

 

Before this incident, between 1994 and 2004, the employee sustained physical injuries.  In October 1994 and March 2001, the employee injured her back and neck in motor vehicle accidents.  The employee sustained a work-related left shoulder injury on October 16, 1999, and work-related back, leg, and knee injuries on February 28, 2001, while working as a certified nursing assistant for Crystal Care Center.  The employee was also injured at work on May 16, 2002, while working as a supervisor at a group home.  As she was driving, one of the residents of the group home, who was seated in the back seat and who had a history of assaulting staff, struggled with the employee, pulled her head and neck back by pulling her hair, and hit her with an ice scraper.

 

On April 20, 2003, and May 31, 2004, the employee injured her low back while transferring patients in the course of her work at a nursing home.  On June 1, 2004, the employee was seen by Dr. Robert Johnson at Park Nicollet Clinic, who diagnosed an acute back strain with spasms, and prescribed Naprosyn and Flexeril.  The employee received follow-up treatment in the occupational medicine area of Park Nicollet, and continued to report low back and leg pain, as well as right shoulder pain. The employee underwent additional medical testing for an assessment of her generalized complaints and potential underlying systemic disease, but those additional screening tests were negative.  Shoulder x-rays were also negative.  In her chart note of June 21, 2004, Dr. Mary Arneson noted that Athis leaves us with rather peculiar symptoms for a normal strain,@ and revised the employee=s medication, discontinuing the Flexeril which the doctors stated Asometimes causes odd symptoms.@  Dr. Mary Arneson assigned work restrictions and concluded that the employee had not yet reached maximum medical improvement (MMI).  By June 25, 2004, Dr. Arneson concluded that the employee had reached MMI from her low back strain, and released the employee to return to work with no restrictions.

 

The record contains no additional medical records between June 25, 2004, and the date of the claimed injury here at issue, December 11, 2004.  The employee testified that at the time of the incident on December 11, 2004, she was not under any work restrictions and had not missed any time from work because of her back or neck problems between June and December 2004.

 

The employer and insurer denied primary liability for the employee=s claimed injury of December 11, 2004, asserting that she had sustained no physical injury as a result of that incident. The employee filed a claim petition on February 10, 2005, seeking payment of temporary total disability benefits.  A hearing was held on September 20, 2005.  In his findings and order issued on September 23, 2005, the compensation judge found that the employee did not sustain a work-related physical injury on December 11, 2004, nor a psychological injury consequential to any physical injury.  The judge specifically found that the employee was not struck by the vehicle when it crashed through the window and the employee did not sustain any physical injury or harm as a result of that incident.  The compensation judge also found that the employee did sustain a psychological disability as a result of the December 11, 2004, injury, but that this disability did not result from a physical injury, and consequently denied the employee=s claims.  The judge outlined his conclusions as follows:

 

A preponderance of the evidence of record supports the conclusions of neurologist Dr. VanDyne that there is no reasonable mechanism by which the employee might have sustained any injury attributable to the December 11, 2004 work incident.  The evidence further supports the conclusion of psychiatrist Dr. Gratzer that the employee did not develop any psychiatric sequelae arising from any physical stressors of the December 11, 2004 incident.

 

The employee did not sustain a work-related physical injury on December 11, 2004.  The employee did not sustain a mental injury compensable under the Minnesota Workers= Compensation Law on December 11, 2004.

 

The evidence of the present trial record best suggests that the incident of December 11, 2004 did aggravate the employee=s underlying psychological makeup resulting in a pain disorder associated with psychological factors.

 

(Finding No. 9; emphasis in original.)  The employee appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, 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."  Minn. Stat. ' 176.421, subd. 1.  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."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed."  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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."  Id.

 

DECISION

 

The employee appeals the compensation judge=s finding that she did not sustain either a work-related physical injury or a related compensable mental injury on December 11, 2004.  The compensation judge found that the employee was not struck by the car that crashed through the window, and that if any glass or other debris struck the employee, it did not cause physical harm or injury.  According to notes generated from the employee=s emergency room examination on December 11, 2004, the employee stated that she was not hit by the car or any debris.  The employee argues that she is unsure what happened immediately after the crash, although she twisted and strained her back and neck, as indicated by the findings of spasm at Noran Clinic.  She has provided varying descriptions of the incident, however, and the compensation judge specifically noted that the employee=s history of the December 11, 2004, incident was contradictory:

 

At trial the employee testified that she did not think that her body was physically struck on December 11, 2004 but also indicated that she did feel something on her back.  At the time of her independent medical examination by neurologist, Dr. VanDyne, she indicated that she couldn=t say whether she was struck by a car or other objects.  At the time of her independent medical examination by psychiatrist, Dr. Gratzer, the employee indicated that she felt a great force behind her, that she was thrown forward, and lost consciousness.  (The December 11, 2004 ambulance notations indicate that the employee did not lose consciousness).

 

(Finding 7.)  Assessment of the credibility of a witness is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).  A finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary, see Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989), and it was not unreasonable, in view of the evidence of record, for the compensation judge to conclude that the employee sustained no physical injury as a result of the December 11, 2004, incident.

 

The employee argues that she sustained a physical injury as a result of the car crashing into the store window, even though she was not struck by the car or debris.  It is the employee=s position that the twisting motion and jarring, that occurred when the employee was extremely startled by the noise and impact of the crash, caused her to vomit and resulted in various symptoms in her neck, upper back and shoulder, as well as headaches.  The employee argues it is not necessary for an actual physical contact to occur in order for a physical trauma or event to manifest itself in physical symptoms.  The compensation judge relied on Dr. Van Dyne=s opinion, however, that there was no reasonable mechanism by which the employee might have sustained any injury to the extent she has claimed, since she was not struck by any debris and did not fall into any objects or onto the floor.  It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  Substantial evidence supports the compensation judge=s findings that the employee was not struck by the car, that any other potential contact, for example by glass or debris, caused no physical harm or injury, and that there was no mechanism by which the employee was physically injured as a result of this incident.  We affirm that finding.

 

The employee also appeals the compensation judge=s finding that the employee did not sustain a mental injury as a result of the December 11, 2004, incident.  Workers' compensation claims involving psychological/mental problems are divided into three categories:  (1) cases in which mental stimulus produces physical injury, (2) cases in which physical stimulus produces mental injury, and (3) cases in which mental stimulus produces mental injury.  Under Minnesota law, claims for compensation based on the first two categories are recognized, but claims for compensation where a mental stimulus results in mental injury are denied.  Johnson v. Paul's Auto & Truck Sales, Inc.. 409 N.W.2d 506, 40 W.C.D. 137 (Minn. 1987); Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981).

 

The Minnesota Supreme Court has not construed the Workers' Compensation Act to allow compensation for mental disability caused by work-related stress without "physical stimulus," "trauma" or "injury."  Lockwood, 312 N.W.2d at 926, 34 W.C.D. at 309; see also Johnson, 409 N.W.2d 506, 40 W.C.D. 137; Egeland v. City of Minneapolis, 344 N.W.2d 597, 36 W.C.D. 465 (Minn. 1984).  While these terms are not defined in the Act, we conclude that the Agreat force@ reported by the employee in this case is not sufficient.  Dr. Gratzer opined that the employee did not develop any psychiatric sequelae as a result of physical stressors of the December 11, 2004, incident.  He also concluded that the employee=s Apain disorder associated with psychological factors predates the accident and has continued after the accident,@ that her pain disorder is a psychiatric condition, not a physical condition, and that the employee=s Asomatic complaints represent a manifestation of psychological turmoil separated from any physical condition.@  The compensation judge found that Dr. Gratzer=s conclusion was supported by the evidence in the record.  The judge relied upon that opinion, and doing so was within his discretion.

 

This case is distinguished from cases where a compensable mental injury resulted from a physical injury.  See, e.g., Childers v. Honeywell, Inc., 505 N.W.2d 611, 49 W.C.D. 230 (Minn. 1993) (depression caused by low back injury); Hartman v. Cold Spring Granite Co., 243 Minn. 264, 67 N.W.2d 656, 18 W.C.D. 206 (1955) (psychological problems caused by back injury); see also Dotolo v. FMC Corp., 375 N.W.2d 25, 38 W.C.D. 205 (Minn. 1985) (depression caused or aggravated by tinnitus).  This court has interpreted those cases to "require evidence of a bodily reaction, that is, some physical injury or illness which in turn causes or aggravates the psychological injury.@  Larson v. McNamara Contracting, 48 W.C.D. 105, 111 (W.C.C.A. 1992), summarily aff=d (Minn. Feb. 4, 1993).  In this case, there is no evidence that the employee's physical contact with flying glass or a Agreat force@ resulted in any "medical condition," as in Dotolo, or "bodily reaction" as defined by Larson.  This court has specifically declined to expand the Larson definition of Abodily reaction@ to include any physical reaction, such as pain.  Dunn v. U.S. West Comm., 52 W.C.D. 682, 686 (W.C.C.A. 1995), summarily aff=d (Minn. June 29, 1995).  The compensation judge recognized that the employee was subjected to a mental stress at work that has psychologically disabled her, but concluded that the employee=s claim was barred by the Supreme Court=s decisions.  Citing to Lockwood and Johnson, the compensation judge further noted that Athe mere presence of physical symptoms does not convert a claim based on mental injury caused by mental stress into a claim based on physical injury.@  (Memo. at 6.)  Substantial evidence supports the compensation judge=s findings that the employee sustained no work-related physical injury on December 11, 2004, nor a mental injury caused by a physical stimulus.  We therefore affirm the findings and order.