DANIEL D. KOPISCHKE, Employee/Appellant, v. FOOD SERV. OF AM. and TRAVELERS GROUP, Employer-Insurer/Respondents.

AUGUST 20, 2018

No. WC18-6155

MENTAL INJURY - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records, expert medical opinion and lay testimony, support the compensation judge’s determination that the employee did not meet that standards of Minn. Stat. § 176.011, subd. 15(d), for demonstrating post-traumatic stress disorder resulting from the employee’s work injury.

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

Compensation Judge: Grant R. Hartman

Attorneys: DeAnna M. McCashin, McCashin Law Firm, Chtd., Alexandria, Minnesota, for the Appellant. Katherine Sommerer VanHavermaet, Kelly R. Rodieck & Associates, St. Paul, Minnesota, for the Respondents.




The employee appeals from the compensation judge’s determination that the employee failed to demonstrate by a preponderance of the evidence that he suffered from work-related post-traumatic stress disorder and failed to prove that the he was entitled to the temporary partial disability and medical benefits claimed. We affirm.


The employee has held a Class A driver’s license for operating trucks for about thirty years. Over that time, the employee drove for a number of employers. In March 2014, the employee began working for the employer, Food Services of America, as a route driver. On August 12, 2016, the employee suffered a work injury to his neck and left shoulder when a load being wheeled down a ramp from the employee’s trailer overturned. The employee underwent physical therapy for that injury and was able to work without restrictions.

Before dawn on January 2, 2017, the employee was driving a company truck with an empty trailer from Alexandria, Minnesota to Fargo, North Dakota on Interstate Highway 94. The employee was travelling at approximately 65 miles per hour. Due to weather conditions, a car next to the employee’s truck began to fish-tail while passing. The car struck the employee’s truck while on a bridge overpass. This action caused the employee to lose control of his vehicle. The employee’s truck jack-knifed and left the highway, coming to a stop in a ditch just beyond the overpass. The trailer impact damaged the truck’s fuel tank and the back of the tractor. Due to the stress of the crash, the employee sat in the damaged tractor for fifteen to twenty minutes. The employee considered himself to have narrowly avoided death. After gathering himself, the employee checked on occupants of the other car and contacted the Minnesota State Highway Patrol. The employee’s truck was not in a condition to be driven and it was towed for repairs.

After completing accident report forms and a mandatory drug test, the employee went home. At work the following day, the employee was not driving, but he accompanied a driver on his route. The employee began experiencing neck and left shoulder pain symptoms which increased over the following days. As the employee returned to driving tractor-trailers, he noted that his driving behavior changed. The employee felt unsafe in operating the truck, both for himself and other motorists.

On January 9, 2017, the employee called in sick and indicated that he could not drive his truck. On January 10, 2017, the employee was examined by Julie Ann Anderson, R.N., C.N.P. The employee was diagnosed with neck strain and post-traumatic stress disorder (PTSD). The employee was medically restricted against truck driving or riding along as a passenger pending psychological examination. The employer and insurer denied primary liability for any mental health injury arising from the January 2, 2017, work injury. The employee undertook a course of physical therapy extending to April 2017, to address his neck strain. No medical restrictions were imposed on the employee attributable to the condition of his neck and left shoulder.

In January 2017, the employee was examined by Mary Hammargren, L.P., who diagnosed him with acute stress disorder. Ms. Hammargren anticipated that the employee’s diagnosis would change to PTSD when the employee’s symptoms persisted longer than one month from the date of injury.

On February 6, 2017, the employee began working full-time for Carlos Creek Winery as a wholesale manager. The employee’s duties were primarily in an office setting and did not include driving a large truck or performing as much lifting. The employee’s new job paid less than the employee’s date of injury position.

In May 2017, the employee began treating with Alison Rusk, L.M.F.T., M.A. Ms. Rusk documented a number of psychological symptoms related to the employee’s motor vehicle accident on January 2, 2017, including fear around large trucks, unusual dreams, disrupted sleep patterns, and hypervigilance. Ms. Rusk diagnosed the employee with PTSD under the criteria of the DSM-5 for that condition. Ms. Rusk recommended a psychiatric evaluation and psychotherapy. In ongoing visits with Ms. Rusk, the employee described improving functioning primarily through positive ideation and self-coaching.

On July 27, 2017, the employee was interviewed by Ryan Voigt, Psy.D., L.P. Dr. Voigt reviewed the assessment of Ms. Rusk, as well as the employee’s documented symptoms. Dr. Voigt agreed with Ms. Rusk’s assessment of the employee’s psychological condition and the diagnosis of PTSD.

The employee’s last therapy session with Ms. Rusk occurred on September 1, 2017. The employee indicated that his symptoms were “decreasing” and described himself as “overall functioning okay.” (Employee’s Ex. H.) No specific symptoms were identified beyond “distressing events on the road when he has to pass or encounter a big rig.” (Id.) The notes indicate that the employee was successful at self-coaching to address these situations. Ms. Rusk inferred that the employee was likely experiencing symptoms, but he was avoiding them and distracting himself.

On October 12, 2017, the employee underwent an independent psychological examination (IPE) conducted by Paul Arbisi, Ph.D., L.P., on behalf of the employer and insurer. Dr. Arbisi administered the MMPI-2-RF test and the employee completed the Life Event Checklist 5. Dr. Arbisi concluded that the employee did not meet the criteria for PTSD by not experiencing exposure to threatened death. Dr. Arbisi based this conclusion on the absence of serious injury to the employee or the other persons involved in the January 2, 2017, accident. This rendered the incident, in Dr. Arbisi’s opinion, to lack significant magnitude to support a diagnosis of PTSD under the DSM-5. The employee’s responses were assessed as not “particularly upset nor demonstrated any physiological reactivity when describing the accident.” (Employer’s Ex. 2.)

Dr. Arbisi noted that the employee was not receiving any treatment for PTSD beyond a general discussion of his feelings. The employee denied mood changes, sleeplessness, or increased activity for any period of at least three consecutive days. The employee did not have any difficulty driving his personal vehicle and did not significantly react to seeing tractor-trailers while driving. The employee denied being irritable, having problems with memory, or being in any form of negative emotional state. Dr. Arbisi assessed the employee’s MMPI-2-RF results as inconsistent with the development of PTSD or any consequential psychological condition. From the foregoing, Dr. Arbisi concluded that the employee did not meet the criteria for a diagnosis of PTSD or any psychological injury as a direct or consequential result of the January 2, 2017, work injury, outside of a temporary adjustment disorder that would have resolved within 30 days of the accident.

The employee filed a claim petition seeking medical and economic benefits which were denied by the employer and insurer. The matter came on for hearing before a compensation judge on December 19, 2017. The parties stipulated to payment of the employee’s out-of-pocket expenses for certain clinic treatment and physical therapy. The employee’s wage loss claims as of the date of hearing were for temporary total disability (TTD) compensation from January 9, 2017, to February 5, 2017, and temporary partial disability (TPD) compensation from February 6, 2017, to the date of the hearing. At the hearing, the employee testified regarding the circumstances of the January 2, 2017, work injury, including that he believed he was going to die in the crash. The employee described his neck and shoulder condition as precluding a return to performing his regular duties with the employer. The employee described his continuing psychological symptoms and how those symptoms have reduced in intensity over time. The employee also described ongoing physical limitations following the January 2, 2017, work injury, and that he would never resume driving a tractor-trailer.

In his Findings and Order served and filed on January 26, 2018, the judge determined that the employee does not suffer from PTSD as a result of the work injury. The judge awarded TTD benefits from January 9, 2017, through February 5, 2017, denied TPD benefits, and denied reimbursement of any medical benefits not stipulated to be paid by the employer and insurer. The employee appeals from the finding of no PTSD and the denial of wage loss and medical benefits.


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

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


On appeal, the employee argues that the compensation judge did not address the issue actually presented, which is whether or not the employee suffered from a mental injury arising from a physical injury, and instead improperly limited the issue to whether the employee suffered from PTSD arising from the January 2, 2017, work injury. The employee also argues that the opinion of the independent psychological examiner lacks foundation and that the compensation judge’s decision is not supported by substantial evidence.

1.   Issue Presented

At the hearing, the compensation judge stated the issue to be decided as “What is the nature and extent of the work injury sustained on January 2, 2017; more specifically, it looks like we have an issue of a mental injury that may have occurred from either a physical to mental or a PTS[D] claim that would be under the Statute.” (T. at 6.) Both counsel agreed that this was an adequate statement of the issue. As presented at hearing, the employee’s evidence went to a diagnosis of PTSD arising from the January 2, 2017, work injury. There was no evidence presented that the employee was suffering from any mental condition arising from his physical injuries from that incident. By contrast, the opinion of Dr. Arbisi, relied upon by the compensation judge, expressly concluded that there was no psychological injury that arose from the January 2, 2017, work injury. There was no error by the judge in limiting his findings and conclusions to the employee’s claimed PTSD condition.

2.   PTSD Criteria

Under Minn. Stat. § 176.011, subd. 15(d), mental impairment includes the condition of PTSD, as defined in the most recent version of the American Psychiatric Association’s manual regarding such disorders. The Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5), criteria 309.81, sets out the standards for a diagnosis of PTSD. As applicable to the facts in this case, a diagnosis of PTSD must meet the following criteria: 1) exposure to threatened death or serious injury; 2) presence of intrusive symptoms following the event; 3) persistent avoidance of stimuli associated with the event; 4) two or more negative alterations in cognition or mood associated with the event; 5) two or more marked alterations in arousal or reactivity associated with the event; 6) duration of the disturbance over one month; 7) distress or impairment in social or occupational functioning; and 8) absence of other cause for the disturbance. As the employee’s case as presented was whether the employee suffered from PTSD that caused his diminution in earning capacity and supported an award of TPD benefits, the employee bears the burden to demonstrate that those criteria are met. Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 245 N.W.2d 451, 29 W.C.D. 86 (Minn. 1976).; Adkins v. Univ. Health Care Ctr., 405 N.W.2d 231, 233, 39 W.C.D. 898, 900 (Minn. 1987).

3.   Substantial Evidence

In support of the claim for benefits, the employee relied on the opinions of his treating psychological providers. In opposing the claim, the employer and insurer relied on the opinion of Dr. Arbisi. 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. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In this matter, there are some facts which are misstated in Dr. Arbisi’s report. The criticism of Dr. Voight’s evaluation is, in part, based on the incorrect assumption that there was no face-to-face evaluation. Similarly, Dr. Arbisi’s aside regarding the employee being previously employed part-time with the Carlos Creek Winery is factually incorrect. Additionally, parts of Dr. Arbisi’s assessment of the employee in light of the DSM-5 criteria for PTSD are questionable, as a highway speed crash in the vicinity of a highway overpass is certainly capable of inducing a fear of death, particularly at the moment when control is lost and the outcome remains uncertain. Dr. Arbisi appears to rely on the employee not being seriously injured in the crash, when the applicable criterion plainly states “actual or threatened death [or] serious injury ...” (emphasis added).

Despite the weaknesses identified by the employee, the record supports Dr. Arbisi’s overall conclusion that some of the PTSD criteria are lacking in the employee’s symptomology. The employee’s medical record lacks the multiple negative alterations in cognition or mood and marked alterations in arousal or reactivity that are required under the DSM-5 for a diagnosis of PTSD. As all of the criteria are required to support a diagnosis of PTSD, the absence of any single criterion precludes such a diagnosis. The employee’s testimony at the hearing is consistent with a conclusion that the employee’s ongoing symptoms were minor and becoming less frequent. In this matter, the compensation judge’s conclusion that the employee did not experience PTSD after the January 2, 2017, work injury is supported by substantial evidence including the opinion of Dr. Arbisi, the employee’s medical record, and reasonable inferences from the employee’s own testimony.

4.   Foundation

The employee maintains that Dr. Arbisi’s opinion could not be relied upon by the compensation judge, as that opinion lacked adequate foundation. Dr. Arbisi reviewed the employee’s medical record, conducted an in-person interview, administered several psychological testing instruments, and evaluated the results of those tests. Dr. Arbisi accurately described the mechanism of injury in his assessment. This is adequate foundation for an opinion on the employee’s psychological condition. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017).


The hearing record contains evidence of a psychological adjustment disorder and physical limitations that prevented the employee from resuming his date of injury job duties and supports the award of TTD until February 5, 2017.[1] The hearing record supports a conclusion that the employee did not suffer from PTSD following the January 2, 2017, work injury and treatment costs for that condition are not compensable. A reasonable inference from the evidence in the record is that the employee’s change of employment was a conscious decision to no longer drive tractor trailers and not the result of a psychological condition arising from the January 2, 2017, work injury. As such, the employee’s lower earnings from February 6, 2017, onward do not entitle the employee to TPD benefits. For these reasons, the compensation judge’s Findings and Order served and filed January 26, 2018, is affirmed.

[1] A finding that was not appealed.