DALE A. NELSON, Employee/Appellant, v. STATE OF MINN. DEP’T OF HUMAN SERVS., SELF-INSURED, Employer/Respondent, and RICE MEM’L HOSP. and AFFILIATED CMTY. MED. CTRS., Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS
JULY 27, 2017

No. WC17-6033

STATUTES CONSTRUED—MINN. STAT. § 176.011, SUBD. 15(d); CAUSATION—SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately founded expert medical opinion, supports the compensation judge’s finding that the employee did not suffer post-traumatic stress disorder, as defined in Minn. Stat. § 176.011, subd. 15(d), resulting from his work injury.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. David A. Stofferahn, Judge
  3. Gary M. Hall, Judge

Compensation Judge: William J. Marshall

Attorneys: Michael Kemmit, Kristen S. Gyolai, and Stephen Fields, Fields Law Firm, Minneapolis, Minnesota, for the Appellant. Richard W. Schmidt and Michael R. Johnson, Cousineau, Waldhauser & Kieselbach, P.A, Minneapolis, Minnesota, for the Respondents.

Affirmed.

OPINION

PATRICIA J. MILUN, Chief Judge

The employee appeals the compensation judge’s determination that the employee did not suffer post-traumatic stress disorder as a result of his June 28, 2015, work injury. We affirm.

BACKGROUND

On June 28, 2015, Dale A. Nelson, the employee, was injured while working as a nurse at the Child Adolescent Behavioral Health Services Unit, a division of the Minnesota Department of Human Services, the self-insured employer. A patient in the unit assaulted the employee by putting him in a headlock and punching him on his left temple multiple times. The employee was treated at an emergency trauma center, and while there he was severely hyperventilating, restless, and complaining of numbness in his face, hands, and feet. He had abrasions on the left side of his face and the right side of his chest, abdomen, and right leg, as well as mild tenderness along his left upper quadrant. CT scans of his brain, chest, abdomen, and pelvis were read as normal. The employee was off work until July 6, 2015.

The employee has been treated for depression since 1990. He had previously been assaulted at work in 2007, when he was choked by a patient, and in 2014 when he was pulled to the ground and injured his neck. In October 2014, he underwent cervical fusion surgery. The employee sought psychiatric care in 2008. On October 31, 2013, the employee began treating with Stephanie Olson, a certified nurse practitioner (CNP), and continued treating into 2015 for depression and anxiety.

After the employee returned to work, he was involved in two additional potentially violent situations. On July 13, 2015, CNP Olson indicated that the employee was mildly depressed and had signs of post-traumatic stress disorder (PTSD). She stated that the employee’s diagnosis included an unspecified trauma related disorder and noted that PTSD would have to be ruled out. On July 29, 2015, CNP Olson recorded that the employee was still having symptoms that were likely due to PTSD, such as unpleasant dreams, anxiety about work, guilt about not working, and restlessness. The employee reported similar symptoms to CNP Olson on August 17, 2015. On September 16, 2015, CNP Olson recorded that the employee had become more depressed and he had high anxiety; he was also dreaming vividly about work and had some suicidal ideation with no plan; and he did not feel capable of returning to work. On October 12, 2015, CNP Olson recorded that the employee felt more on edge and had more almost paranoid thoughts, and that he had a nightmare about returning to work.[1]

On March 11, 2016, the employee underwent psychological testing interpreted by Dr. Marvin L. Logel.[2] Dr. Logel assessed the employee using a Minnesota Multiphasic Personality Inventory-2-Restructure Form, a psychological test to assess personality and psychopathology. The test report, dated April 8, 2016, was offered without interview of the person taking the test or review of his history by Dr. Logel, and was intended to be used as an adjunct to a clinical evaluation of the test taker. Dr. Logel stated that there were potential difficulties with interpretability of the test results “due to over-reporting”[3] by the employee. Dr. Logel also noted that the employee had “generated an unusual combination of responses that is associated with non-credible reporting of somatic and/or cognitive symptoms . . . and non-credible memory complaints.”[4] He noted that the employee reported physical problems, cognitive difficulty, memory problems, low frustration tolerance, difficulty in concentration and in dealing with stress, anxiety, intrusive ideation, nightmares, and suicidal ideation. Dr. Logel concluded that the test results were suggestive of a somatoform disorder and also depressive or anxiety disorder with anti-social features.

The employee was also evaluated by Dr. Thomas Gratzer for an independent psychiatric evaluation on March 11, 2016. After reviewing the test results and the employee’s medical records, Dr. Gratzer found no evidence of PTSD, and concluded that the employee had reactive anxiety symptoms that had resolved by August 17, 2015.[5] At the time of the evaluation, Dr. Gratzer opined that the employee was not showing any objective evidence of any psychiatric condition such as depression, anxiety, constricted affect, slowed speech, poor eye contact, self-absorption, or psychomotor slowing, exaggerated startle response, hypervigilance, avoidant behaviors, emotional detachment, irritability, or sense of foreshortened future, and did not appear restless, tense or agitated. Dr. Gratzer concluded that “to the extent that [the employee] reported ongoing psychiatric symptoms, this was reflective of embellishment.”[6]

On August 1, 2016, Dr.Michael Keller evaluated the employee and found that the employee had met all diagnostic criteria for PTSD in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, (DSM-5) as a direct result of the work injury.[7] Dr. Keller used the CAPS-5, Clinician-Administered PTSD Scale for DSM-5, assessed the employee under these criteria, and found that the employee met all of the DSM-5 criteria for a diagnosis of PTSD. Dr. Keller also conducted a Minnesota Multiphasic Personality Inventory – Second Edition, and found that the results, in combination with clinical observation and reported information, were consistent with diagnoses of PTSD, depressive disorder, and anxiety disorder. Dr. Keller questioned the interpretation of the psychological testing done by Dr. Logel, stating that the results of that testing actually support a finding of PTSD. Dr. Keller also stated that he had reviewed Dr. Gratzer’s report and opined that there was no indication that Dr. Gratzer had conducted a “structured, specific, or precise assessment of the [employee] with respect to PTSD diagnostic criteria on a diagnostic criteria item-by-item basis as so indicated by the [DSM-5].”[8] Dr. Keller opined that Dr. Logel and Dr. Gratzer arrived at erroneous and clinically inaccurate opinions and concluded that Dr. Gratzer’s findings were unsupported and therefore unreliable as to the validity of the diagnostic impressions specific to PTSD.

On October 5, 2016, Dr. Logel responded to Dr. Keller’s report, opining that the report was inaccurate and misleading regarding the testing process and results.[9] He noted that PTSD is included under anxiety disorders and would have been within the diagnostic possibilities under the testing. Dr. Logel also stated that the diagnostic hypotheses suggested by his testing were presented according to the DSM classification system and that the computer generated scoring and test report were tied to the DSM diagnoses. Dr. Gratzer responded to Dr. Keller’s report on October 20, 2016, stating that the employee had undergone a standard psychiatric evaluation and testing, and that the employee had been questioned regarding the criteria for PTSD.[10]

The employee sought benefits for an aggravation of a neck condition and PTSD resulting from his work injury. The compensation judge concluded that the employee did not sustain a temporary aggravation of his neck condition and that he did not suffer PTSD as a result of the work injury. Relying on Dr. Gratzer’s opinion, the judge found the employee had sustained a temporary aggravation of a pre-existing anxiety condition as a result of his work injury which had resolved by August 17, 2015. The judge awarded causally-related medical treatment expenses and temporary total disability benefits from July 1 through August 17, 2015. The judge filed an Amended Findings and Order a few days later correcting a date listed in one of the orders. The employee appeals the compensation judge’s determination that he did not suffer PTSD resulting from his June 28, 2015, work injury.

STANDARD OF REVIEW

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.”[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] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[13] Similarly, 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 evidence or not reasonably supported by the evidence as a whole.”[14]

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.[15]

DECISION

The employee contends the compensation judge erred by relying on a medical report that did not analyze the employee’s symptoms under the DSM-5 criteria for post-traumatic stress disorder (PTSD) as required by the appropriate sections of the Minnesota Workers’ Compensation Act.[16] Specifically, the employee argues that Dr. Gratzer did not adequately address the PTSD criteria under the DSM-5 as required by Minn. Stat. § 176.011, subd. 15(d).

As of October 1, 2013, the definition of a personal work injury includes mental impairment under the occupational disease section of the Workers’ Compensation Act.[17] The statute permits mental impairment as a compensable personal injury regardless of the disorder’s classification as a physical or mental injury.[18] Minnesota Statutes section 176.011, subdivision 15(d), defines mental impairment as “a diagnosis of post-traumatic stress disorder by a licensed psychiatrist or psychologist.” Post-traumatic stress disorder “means the condition as described in the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association.”[19] The current edition of the Diagnostic and Statistical Manual of Mental Disorders is the fifth edition (DSM-5).[20]

On appeal, the employee asks this court to review the compensation judge’s findings, asserting that the medical report of Dr. Gratzer selectively cited and misstated the employee’s treatment records by stating that there was no evidence of PTSD symptoms after the June 15, 2015, work injury. The employee further asserts the judge erred as a matter of law in relying on Dr. Gratzer’s report because Dr. Gratzer inadequately addressed the DSM-5 criteria for post-traumatic stress disorder.

In reviewing Dr. Gratzer’s reports, we note that he does address some of the DSM-5 criteria. At the time of the March 11, 2016, evaluation, Dr. Gratzer opined that the employee was not showing any objective evidence of any psychiatric condition such as depression, anxiety, constricted affect, slowed speech, poor eye contact, self-absorption, or psychomotor slowing, exaggerated startle response, hypervigilance, avoidant behaviors, emotional detachment, irritability, or sense of foreshortened future, and did not appear restless, tense or agitated. The employee argues that Dr. Gratzer ignored evidence in the medical records from CNP Olson. Dr. Gratzer reviewed the employee’s records from CNP Olson and specifically mentioned the record from July 29, 2015, when the CNP reported that the employee was having PTSD symptoms. He also acknowledged that the CNP had noted that the employee was extremely anxious when thinking about work and had restless and poor focus due to anxiety, but opined that the CNP had not documented symptoms required by the DSM-5 criteria.[21] Dr. Gratzer concluded “there is no evidence to support that [the employee] experienced post-traumatic stress disorder in relation to [the June 28, 2015] incident[.]”[22]

In concluding that there was no evidence of PTSD, and that the employee had reactive anxiety symptoms which had resolved by August 17, 2015, Dr. Gratzer did not address all of the specific symptoms recorded by CNP Olson. A medical opinion, however, is not necessarily deficient because a doctor fails to address all contrary medical evidence or opinion, and need only to be based on “enough facts to form a reasonable opinion that is not based on speculation or conjecture.”[23] Here, Dr. Gratzer reviewed Dr. Logel’s testing results and the employee’s medical records, and therefore was aware of the employee’s recorded symptoms. Further, Dr. Gratzer opined that “to the extent that [the employee] reported ongoing psychiatric symptoms, this was reflective of embellishment as supported by psychological testing.”[24] Dr. Logel had noted that there were potential difficulties with interpretability of the test results “due to over-reporting”[25] by the employee and that the employee had “generated an unusual combination of responses that is associated with non-credible reporting of somatic and/or cognitive symptoms … and with non-credible memory complaints.”[26] Given the evidence, the compensation judge could reasonably conclude that Dr. Gratzer’s opinion was based on evidence in the record, not on speculation or conjecture.

In considering the evidence, the compensation judge had conflicting opinions from the medical experts regarding the employee’s diagnosis. 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, as stated in Nord v. City of Cook.[27] In Nord, this court reversed a compensation judge’s decision because it found the medical opinion relied upon to be inadequate. The Minnesota Supreme Court affirmed, and in doing so, stated that while a factfinder’s “choice between experts whose testimony conflicts is usually upheld, that choice is not upheld where the facts assumed by the expert in rendering [an] opinion are not supported by the evidence.”[28] Whether this court might view the evidence differently is not the point, the question is whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.[29]

The employee cites Dr. Keller’s opinion that the employee had sustained PTSD as a result of the work injury and argues that medical records listing several symptoms he experienced after the injury could meet the criteria for PTSD. Evidence submitted in this case supports this position. Dr. Keller diagnosed PTSD using the criteria listed in the DSM-5 and provided an opinion that the PTSD after the physical assault was the result of significant stress from the incident. The employer asserts that Dr. Gratzer found no evidence of PTSD and diagnosed the employee’s symptoms as reactive anxiety which had resolved by August 17, 2015. Dr. Keller questioned the psychological testing done by Dr. Logel for Dr. Gratzer’s evaluation, and claimed that Dr. Gratzer’s assessment was not rigorous or comprehensive. Dr. Logel disputed Dr. Keller’s report, opining that the report presented an inaccurate and misleading picture of his interpretation of the psychological testing. Dr. Gratzer also disagreed with Dr. Keller, stating that the employee had undergone a standard psychiatric evaluation and testing, and that the employee had been questioned regarding each of the DSM-5 criteria for PTSD. The judge acknowledged that Dr. Keller disagreed with the interpretation of the testing performed, but the judge accepted Dr. Logel and Dr. Gratzer’s explanation of the testing, and he specifically adopted their interpretation and how it tied to the record as a whole.[30]

Relying on Dr. Gratzer’s opinion, the compensation judge concluded that there was no indication of any changes that would rise to the level of a substantial aggravation of his pre-existing conditions or point to the development of a PTSD condition related to the June 28, 2015, incident. The judge also noted that that employee had similar symptoms before the 2015 work injury. Given the scope of our review, we conclude that the compensation judge’s finding that the employee did not have PTSD resulting from a physical injury is supported by evidence that a reasonable mind might accept as adequate. Accordingly, we affirm this finding and the judge’s conclusion that the diagnosis and treatment were not compensable under the Minnesota Workers’ Compensation Act.

[1] Ex. D.

[2] Ex. 5, report dated April 8, 2016.

[3] Id. at 1.

[4] Id.

[5] Ex. 6, report dated April 8, 2016.

[6] Id. at 50.

[7] Ex. A at 14, 16.

[8] Id. at 4.

[9] Ex. 5, follow-up report dated October 5, 2016.

[10] Ex. 6, follow-up report dated October 20, 2016.

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

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

[13] Id. at 60, 37 W.C.D. at 240.

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

[15] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

[16] The self-insured employer claims that the employee did not object to the admission of Dr. Gratzer’s opinions and therefore any arguments related to the report were not raised at the hearing and are being raised for the first time on appeal. The self-insured employer also argues that any other issues raised in the notice of appeal were not briefed on appeal and are therefore waived. As a result, the self-insured employer claims that there are no justiciable issues before this court and that the appeal should be dismissed. We disagree. While the employee did not object to the admission of Dr. Gratzer’s report, he did argue that Dr. Gratzer’s opinion did not address the appropriate criteria and that Dr. Keller’s opinion was more persuasive, which sufficiently preserved these issues for appeal.

[17] Minn. Stat. § 176.011, subds. 15-16. The definitions of “personal injury” and “occupational disease” were amended in Minn. Stat. § 176.011, subds. 15-16, to include “mental impairment” in an Act of May 16, 2013, ch. 70, art. 2, §§ 1-2, 2013 Minn. Laws 362, 367-68.

[18] Minn. Stat. § 176.011, subd. 15; see also Schuette v. City of Hutchinson, 843 N.W.2d 233, 237, n.2, 74 W.C.D. 169, 173, n.2 (Minn. 2014). Compare Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981) (workers’ compensation claims where a mental stimulus results in mental injury held not compensable) and Johnson v. Paul’s Auto & Truck Sales, Inc., 409 N.W.2d 506, 508, 40 W.C.D. 137, 140 (Minn. 1987). In Schuette, the Minnesota Supreme Court noted that the amendments to Minn. Stat. § 176.011, subds. 15 and 16, had created a limited exception to the Lockwood framework for PTSD. Schuette, 843 N.W.2d at 237, n.2, 74 W.C.D. at 173, n.2.

[19] Minn. Stat. § 176.011, subd. 15(d).

[20] Diagnostic and Statistical Manual of Mental Disorders, 271-72 (American Psychiatric Association, 5th ed. 2013).

[21] Dr. Gratzer stated that the CNP had not documented symptoms under criteria B, “presence of one or more intrusion symptoms such as recurrent, involuntary and intrusive distressing recollections of the event, recurrent distressing dreams of the event, dissociative reactions, intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble the event, and/or marked physiological reactions to cues,” criteria C “persistent avoidance associated with the traumatic event including avoidance of or efforts to avoid distressing memories, thoughts, or feelings about the event, or avoidance of or efforts to avoid external reminders such as people, places, conversations, activities, objects, or situations that arouse distressing memories, thoughts, or feelings related to the event,” criteria D “negative alterations in cognitions and mood associated with the traumatic event including persistent and exaggerated negative beliefs or expectations about oneself, others, or the world, persistent, distorted cognitions about the cause or consequences of the trauma, persistent negative emotional state such as horror, anger, guilt, or shame, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, and/or persistent inability to experience positive emotions,” or criteria E “marked alterations in arousal and reactivity associated with the traumatic event including irritable behavior and anger outbursts, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, impaired concentration, and/or sleep disturbance.” Ex. 6 at 49-50.

[22] Ex. 6 at 49.

[23] Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017).

[24] Ex. 6 at 50.

[25] Ex. 5 at 1.

[26] Id.

[27] 360 N.W.2d 337, 37 W.C.D. 364 (Minn.1985); see also Welton v. Fireside Foster Inn, 426 N.W.2d 883, 41 W.C.D. 109 (Minn. 1988) (holding that a doctor's opinion regarding causation which is based on an inadequate factual foundation is of little evidentiary value).

[28] Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.

[29] See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 512-13, 43 W.C.D. 254, 260-61 (Minn. 1990); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).

[30] Pursuant to Minn. Stat. § 176.011, subd. 15(d), the compensability of a claim for PTSD is met or defeated by description “in the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association.” While a more comprehensive analysis of the PTSD criteria listed in the DSM-5 would be helpful for appellate review, such an analysis is not dispositive in this case.