CHADD A. SMITH, Employee/Appellant, v. CARVER COUNTY and MN COUNTIES INTERGOVERNMENTAL TRUST SELF-INSURED, Employer-Insurer/Respondents.

The employee filed a claim for workers’ compensation benefits, alleging he had developed post-traumatic stress disorder (PTSD) as the result of his employment as a deputy sheriff for Carver County. The compensation judge denied the claim, concluding that the employee had not established a compensable claim for PTSD. We reverse in part, vacate in part, and remand the matter for further consideration in accord with this decision.

Chadd Smith was born on April 26, 1983. He graduated from high school and obtained an associate’s degree in law enforcement. Before going to work for Carver County, the employee had been employed as a part-time police officer for the city of Cold Spring for about two years. He was hired as a deputy sheriff for Carver County in July 2006. As part of the hiring process, the employee underwent a psychological evaluation to assess his suitability for the position of deputy sheriff. The employee was interviewed and took a number of tests, including the MMPI-2 and the California Personality Inventory. Following the psychological evaluation, the employee was recommended for employment as a deputy sheriff.

As a deputy sheriff, the employee was primarily assigned to patrol duties. He responded to various emergency and non-emergency calls, collected evidence at crime scenes, questioned witnesses and suspects, and arrested and transported suspects. Those duties exposed the employee to a number of traumatic incidents and events.

The employee claimed to have developed PTSD as a result of 16 traumatic events he encountered as a part of his employment as a deputy sheriff, occurring between August 2006 and June 2016. These events included a number of fatal motor vehicle accidents in which the employee was called upon to remove the deceased victim from the vehicle. The employee was called to an accident scene where a truck driver had been crushed by a 100,000-pound rock crusher. A young, pregnant woman was killed when the van she was driving was broadsided by an intoxicated driver. After a collision and resulting car fire, it was the employee’s responsibility to remove a victim from the car after the fire had gone out, and to assist in the autopsy. He responded to a number of motor vehicle accidents in which a victim had been ejected from the vehicle. In one of those incidents, he recalled having to step over a dying young woman so he could check on other possible victims.

The employee also responded to suicides, including two instances involving self-inflicted gunshot wounds to the head. In another instance, the employee responded to a scene involving a man who had jumped head-first from a third-story window to a stone patio. The employee was also called to a scene where a two-year-old child had choked on a marshmallow and attempts to revive the child were unsuccessful. In responding to a house fire call, the employee was required to remove the body of the occupant after having been unable to gain entry to the house for several hours. On the last shift he worked for the county, the employee responded to a report of an odor. The employee investigated and discovered the decomposing body of a man who had died in his backyard where he had remained for several days.

Some of the incidents involved people the employee knew personally. Two victims in fatal auto accidents and one suicide victim had been high school classmates of his. The employee had also responded to a non-fatal motor vehicle accident in which another Carver County deputy was seriously injured. This person had been one of the employee’s training officers. Other incidents involved some connection to the employee’s personal life. The accident involving the pregnant woman occurred when both his wife and his sister were pregnant. One fatal accident involved the same vehicle make and model that his wife was driving at the time.

The employee recounted numerous dreams involving particular incidents, including the death of the pregnant woman. When responding to the scene, the employee observed a car seat. He did not know whether there had been children in the van so he searched the scene for possible child victims. In his dreams, he would relive the scene, the trauma sustained by the woman, and his search for children. He also had dreams about the young woman who had been ejected and who he had stepped over to get to the car, and wondered whether he could have done more for her. The employee stated that he had not been able to forget the sight of the man’s body who had lain dead in his backyard for days. He has not been able to forget his encounters of scenes involving victims of suicides who died by gunshot to the head.

During his employment with the county, the employee was seen for a number of chronic physical conditions. His medical records indicate that he was dealing with significant personal emotional stress due to his wife’s serious medical issues and his daughter’s developmental issues. At the recommendation of his physical medicine doctor, Dr. Philip Weber, the employee saw a therapist, Dr. Damaris Perez Ramirez, on October 10, 2014. In the history he provided, the employee referred to a recent incident in which his attempts to resuscitate a three-year-old gunshot victim were unsuccessful. He reported being traumatized and having flashbacks of the incident that were triggered by smells and sounds. The psychologist diagnosed “major depressive disorder, single, moderate – 296.22” and “acute stress disorder 308.3.” In follow-up sessions with Dr. Perez Ramirez, the diagnosis was amended to include PTSD.

The employee was seen for counseling by a social worker, Peter Lindstam, whom he saw on October 30, 2014. The employee reported difficulty sleeping, nightmares, and feeling overwhelmed with things in his life and work. The diagnosis at that time was “309.28, adjustment disorder with mixed anxiety and depressed mood.”

The employee returned to Dr. Weber in November 2015 and reported depression and anxiety, as well as difficulty sleeping and fatigue. Dr. Weber prescribed Celexa and Lorazepam. The employee saw Dr. Weber in March 2016 for follow-up regarding his various health conditions. The employee’s stressful job was mentioned and it was noted that the employee had been dreaming about “terrible things happening at work.” Dr. Weber assessed the employee with “adjustment disorder with anxiety and depressed mood.”

The employee saw Dr. Weber again on May 18, 2016, who noted a “history of PTSD and also some anxiety. His PTSD is from his law enforcement work.” Dr. Weber’s treatment plan included a referral for behavioral health treatment and a recommendation that the employee see someone who specializes in PTSD. It was also noted that the employee intended to retire from his deputy sheriff position and seek employment in the insurance industry. The employee’s employment with Carver County ended on June 3, 2016.

After his separation from Carver County, the employee applied for, and was awarded, duty disability benefits from the Public Employees Retirement Association (PERA) for his PTSD condition.^[1]

The employee treated at Minnesota Mental Health Center beginning in October 2016. He stated at his first visit that he was seeking therapy to manage anxiety and depression associated with traumatic events he had experienced as a police officer. In his sessions with the therapist, he reported dreams and flashbacks that he continued to experience related to the traumatic incidents he had encountered in his job.

The employee was seen by licensed psychologist, Dr. Michael Keller, on July 30, 2016. Dr. Keller wrote a report which includes over seven pages of history from the employee and a detailed recitation of the 16 traumatic events experienced by the employee in his duties as a deputy sheriff for Carver County. In his report, Dr. Keller concluded that the employee met all of the criteria required for a diagnosis of PTSD under the DSM-5. Dr. Keller diagnosed the employee with PTSD, major depressive disorder, and anxiety disorder. Dr. Keller determined that these diagnoses were “in direct consequence to the examinee’s law enforcement, work-related traumatic exposure experienced while working as a deputy sheriff for the Carver County Sheriff’s Office.”

At the request of the employer and insurer, the employee was evaluated by Dr. Paul Arbisi, a PhD and licensed psychologist. Dr. Arbisi reviewed the employee’s medical records, interviewed the employee, and administered the MMPI-2-RF. Dr. Arbisi concluded that the employee did not meet all of the DSM-5 criteria for a diagnosis of PTSD. Instead, he diagnosed the employee with somatic symptom disorder and adjustment disorder with mixed anxiety and depressed mood.

The employer and its insurer denied liability for the employee’s PTSD, and the employee filed a claim petition seeking workers’ compensation benefits. The employee’s claim petition came on for hearing on December 19, 2017. The employee and his former supervisor at the sheriff’s office testified. The employee’s medical records, and the reports and depositions of Dr. Keller and Dr. Arbisi, were introduced.

The compensation judge issued a Findings and Order on March 16, 2018. The compensation judge made 42 detailed findings, setting out the employee’s medical history and describing the traumatic events identified by the employee as having caused PTSD. In Finding 43, the compensation judge summarized the opinions of Dr. Keller and concluded that Dr. Keller’s opinions were not persuasive and were not adopted. In Finding 44, the compensation judge summarized the opinions of Dr. Arbisi and stated that his opinions were persuasive and were adopted. No further rationale or explanation was provided in the findings or in the memorandum. The judge found the employee failed to establish by a preponderance of the evidence that he sustained a compensable claim for PTSD, and denied benefits.

The employee has appealed.

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).

The employee appeals from the compensation judge’s finding that he failed to establish a compensable claim for PTSD.

For claims arising on or after October 1, 2013, the definition of occupational disease was expanded to include claims for PTSD. Minn. Stat. § 176.011, subd. 15(d). The statute sets forth two requirements to establish a compensable claim for PTSD. First, the diagnosis must be made by a licensed psychologist or psychiatrist. Second, the diagnosis must be consistent with PTSD “as described in the most recently published edition of the diagnostic and statistical manual of mental disorders by the American Psychiatric Association.” The most recently published edition of the diagnostic and statistical manual referred to in the statute is the fifth edition, or DSM-5.^[2] To establish a diagnosis of PTSD, the DSM-5 lists eight criteria, all of which must be met, and gives a brief explanation of each.

This statutory provision is unique in the Workers’ Compensation Act. Nowhere else within the Act does the language of the statute link the compensability of a condition to an outside source, as this provision does for PTSD and the DSM-5. Typical workers’ compensation cases involving medical issues are resolved with the adoption of an expert medical opinion presented by one of the parties. In general, the choice between competing medical opinions is within the purview of the compensation judge and will be affirmed by this court so long as the chosen opinion has adequate foundation. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

Because of the unique language of the statutory provision at issue, a determination of whether a claim for PTSD is compensable must go beyond the weighing and choosing between competing expert medical opinions. Rather, a compensation judge must apply the statute to determine whether the employee met his or her burden of proof to establish a compensable claim of PTSD. In doing so, judges may rely on expert medical opinion, so long as the opinion is consistent with the requirements contained in the statute.

To meet his burden of proof under the statute, the employee offered the report and opinion of Dr. Keller. Dr. Keller is a licensed psychologist and is qualified to make a diagnosis of PTSD. There is no dispute that the employee satisfied the first requirement of the statute. The dispute in this matter is centered on the statute’s second requirement and whether the employee satisfied the criteria set forth in the DSM-5 to establish a diagnosis of PTSD. In particular, the employer and insurer argued that the employee failed to satisfy three of the eight criteria, criteria A-C, relying on the opinions of Dr. Arbisi.

Criterion A requires exposure to or experience of an actual or threatened death, sexual violence, or serious injury. Dr. Keller found this criteria was met based upon the employee’s exposure to numerous traumatic incidents encountered during his employment with Carver County. Dr. Arbisi agreed that the employee had been exposed to traumatic incidents, but that those incidents were not sufficiently traumatic because the employee was not personally involved and was “responding as part of his job.” (Ex. 1 at 79:11-24.) The language of the DSM-5 does not require personal involvement and does not exclude particular occupations. In his interview of the employee, Dr. Arbisi instructed the employee to recount only those incidents the employee considered to be the worst. The employee identified two such incidents. As a result of this imposed limitation, Dr. Arbisi did not consider any of the other incidents experienced by the employee when forming his opinions.

Criterion B requires intrusive symptoms, such as recurrent involuntary distressing memories, recurrent distressing dreams, or other reactions such as flashbacks. Dr. Keller found that the employee’s experience of memories, nightmares and dreams, and flashbacks relating to the traumatic incidents satisfied this criterion. Dr. Arbisi did not deny that the employee experienced these symptoms, but disregarded those symptoms because they were not specific to either of the two incidents the employee considered to be the worst, and because those symptoms did not occur within the 30 days preceding his evaluation. These limitations imposed by Dr. Arbisi are not contained in the language of the DSM-5.

Criterion C requires persistent avoidance of stimuli associated with the traumatic events. Dr. Keller concluded this criterion was met, referring to the employee’s avoidance of discussing the traumatic events with others, including his former co-workers, family, and health care professionals. According to the employee, he avoided particular places or things that triggered memories of these events. Ultimately, the employee felt compelled to give up what he considered his dream job. Dr. Arbisi concluded that, while the employee did avoid stimuli, his avoidance was not sufficient, in part because he continued to associate with former co-workers, and because he would read and be exposed to police reports as part of his current job as an insurance adjuster. The language of the DSM-5 does not require total avoidance as interpreted by Dr. Arbisi.

The compensation judge denied the employee’s claim, finding that he did not establish a diagnosis of PTSD. His decision contains no reference to the language of the statute, and no discussion of evidence relating to particular DSM-5 criteria. Rather, the compensation judge weighed the submitted expert medical opinions and adopted those of Dr. Arbisi over those of Dr. Keller. On appeal, the employer and insurer argue that the compensation judge’s choice of expert should be affirmed pursuant to Nord and its progeny. The employee asserts that the compensation judge erred in relying on the opinions of Dr. Arbisi because those opinions did not apply the DSM-5 as is required by the statute. We agree with the employee.

A psychologist or psychiatrist is not necessarily bound by the defined set of criteria described in the DSM-5, in evaluating, diagnosing, or treating his or her patients. In the context of workers’ compensation, however, a psychologist or psychiatrist is bound by the DSM-5 for purposes of diagnosis. Similarly, a compensation judge’s reliance on expert medical opinion is limited to those opinions that are consistent with the statute’s requirements. Had the legislature intended disputes over the compensability of PTSD to be determined like other medical disputes, resolved by a compensation judge’s choice of expert medical opinion, the statute’s link of the compensability of PTSD claims with the outside source of a diagnostic and statistical manual would otherwise be meaningless. See Allan v. R.D. Offutt Co., 869 N.W.2d 31, 33, 75 W.C.D. 401, 405 (Minn. 2015) (statutes should be interpreted to give effect to every word or phrase).

In forming his opinions, Dr. Arbisi did not limit his analysis to the DSM-5. Rather, he used the DSM-5 as a mere guide or suggested starting point with additional explanation, interpretation, or modification of the criteria. This is contrary to the plain language of the statute. We conclude the compensation judge erred in adopting the opinions of Dr. Arbisi because those opinions are inconsistent with the requirements set forth in Minn. Stat. § 176.011, sub. 15(d), and reverse Finding 44. We vacate Finding 43 and the denial of the employee’s claim, and remand for a determination of whether Dr. Keller’s diagnosis complies with the criteria set out in the DSM-5, and whether that diagnosis is causally related to the employee’s employment as a deputy sheriff. If so, the compensation judge should determine the benefits owed to the employee.