ANNE M. JAMES, Employee/Respondent, v. INDEP. SCH. DIST. NO. 1 and RAM MUT. INS. CO., Employer-Insurer/Appellants, and BLUECROSS BLUESHIELD MINN./BLUE PLUS, MINN. DEP’T. OF HUMAN SERVS./BRS, JOHN P. CRONIN, and MINN. DEP’T. of EMP’T. AND ECON. DEV., Intervenors.

The employer and insurer appeal the determination of the compensation judge that the employee suffered a compensable psychological work injury.  We affirm.

The employee, Anne James, has worked as a paraprofessional for approximately 25 years, the last 10 of which for the employer, the Aitkin School District.  As a paraprofessional, the employee worked with special needs children ranging from high functioning students with minor learning disabilities, to those with severe physical and mental impairments who required personal care.  She taught academics, new behaviors, and coping mechanisms.  She worked with some students one-on-one, while others were in a classroom setting where she would have two or three students under her guidance at a time.  The employee testified that her career was more than just a job as she loved working with, and creating special bonds with, each student.

The employee suffered from long-term depression which she treated with a low dose of anti-depressants.  For approximately 6 or 7 years prior to the work injury, her only mental health medical visits were to a psychiatrist for an annual “med check.”

In 2015, the employee was assigned a specific high school student who was severely autistic and non-verbal.  He was approximately 16 years old and about 6 inches taller than the employee.  He was prone to acts of violence with a history of aggression against other students, staff, and the employee.  He was segregated from other students and had his own classroom.   The school created a “break room,” a padded smaller room where the student could go during outbursts to avoid injuring himself or others.  After a minute or so in the break room, a paraprofessional would enter the room and engage in exercises to calm the student and return him to the classroom.

On March 23, 2017, the student had an outburst and was placed in the break room.  After waiting the minute or so, the employee opened the door to begin the calming exercises.  As the employee opened the door, the student charged out of the room and struck the employee several times about her head.  The employee used defensive mechanisms and pushed the student back into the room.  The student charged after her, striking her again and she pushed him back again.  The student came out a third time, striking her again.  Other paraprofessionals came to the employee’s aid and she was able to get away from the student.  The employee was struck at least 5 or 6 times on the head.

The employee did not work with the student the rest of the day.  After a long weekend, she returned to work the following week.  On March 29, 2017, the student again struck the employee across the head.  This blow was less severe than the event of the week before.

On March 30, 2017, the employee saw her regular eye doctor, Dr. Stephen Kinzer, who sent her to the emergency room.  She was diagnosed with an eye injury and concussion and taken off work for two weeks.  Dr. Kinzer diagnosed the employee with a stun injury to the pupillary sphincter muscle of the right eye resulting in a different pupil size.  The damage to the eye was permanent.  The employee also treated for concussion.  Neuropsychological testing and an MRI revealed no significant brain injury, however, the employee suffered psychological sequelae from the attack.  She testified she had difficulties concentrating, sleeping, and eating, and that she was more emotional and anxious.

The employee returned to work after two weeks and was restricted from working with the same student.  Although not working with the same student, the employee could hear him screaming, and she was very anxious and fearful.  She was allowed to leave work if she experienced headaches, vison changes, or anxiety.

During the summer of 2017, the employee worked at her regular summer job at a resort.  Her psychological symptoms improved, but did not entirely abate, during the summer.

When the school year started in September 2017, the employee’s psychological symptoms returned.  She testified that she had to force herself to go to work.  She had stress and anxiety driving to work and difficulty concentrating.  For the 2017-18 school year, the employee was off work for periods of time unrelated to her work injury, but when she returned to work, her psychological symptoms increased.  The employee again worked for the resort in the summer of 2018.

In September 2018, the next school year began, and once again, the employee’s psychological symptoms returned.  In October 2018, the employee was referred by her attorney to John P. Cronin, Ph.D., a licensed psychologist, for an evaluation.  The employee began to regularly treat with Dr. Cronin.  Over the next two months, Dr. Cronin began placing various restrictions on the employee including that she work only in the administration office of the school, receive periodic work breaks, and work in a secured location.  Eventually, Dr. Cronin determined that due to the employee’s psychological symptoms she could not return to work in any capacity with the employer.

Dr. Cronin’s treatment records described symptoms experienced by the employee including:

Dr. Cronin diagnosed post-traumatic stress disorder (PTSD), anxiety disorder, and major depressive disorder, which he attributed to the two work-related assaults.  In his November 21, 2018, psychological evaluation, Dr. Cronin wrote “the PTSD Checklist revealed significant issues related to repeated, disturbing memories, thoughts and images of her stressful experience, feeling very upset when something reminds her of her experience, having physical reactions when thinking or talking about her past experience, avoiding activities or situations because they remind her of the experience and feeling as if her future will somehow be cut short.”  (Joint Ex. 1H.)  Dr. Cronin concluded his report by stating:

Because the employer could not accommodate the “no working for the school district” restriction, it considered the employee to be voluntarily retired or resigned.  She considered herself to have been terminated.  She returned to work at the resort in the summer of 2019.

The employee testified that she is no longer capable of working with special needs children.  She experiences a sense of shame for being afraid around any child with special needs or even children making loud noises.  She testified to being hopeful to someday being a grandmother, yet fearful that she might not be able to tolerate being around potential grandchildren.

The employer and insurer had the employee evaluated by Paul Arbisi, Ph.D., L.P.  Dr. Arbisi wrote a report dated May 22, 2018, in which he diagnosed the employee with subjective complaints solely related to pre-existing major depressive disorder.  (Ex. 3A.)  He found that she did not suffer from PTSD or any other psychological injury as a result of the two work-related assaults.  He based his conclusions, in part, on his opinion that the employee did not suffer a major traumatic event because he found a lack of any serious physical injury as a result of the assaults.  He also relied upon the employee’s efforts to return to work with the employer as evidence that she was not experiencing avoidance behaviors.

The employer and insurer admitted the employee’s eye and concussion injuries but denied a psychological injury based upon the opinion of Dr. Arbisi.  The employee filed a claim petition seeking various benefits relating to her psychological injury, including medical and wage loss benefits.  The matter came on for trial before a compensation judge.  At trial, the compensation judge identified the issues on the record, stating “whether the employee sustained a consequential psychological injury including depression, anxiety and/or post traumatic stress disorder as a substantial result of the injuries of March 23 and March 29, 2017, and if so, the nature and extent of those injuries . . . .”  (T. 7.)  After reciting the balance of the issues, the compensation judge asked both counsel whether she had correctly identified the issues and both attorneys answered in the affirmative.  (T. 8.)

On August 15, 2019, the compensation judge issued her Findings and Order determining that the employee had proven a work-related psychological injury.  The compensation judge found that the employee developed a compensable mental injury of PTSD, as defined in Minn. Stat. § 176.011, subd. 15, as a direct result of the two work-related assaults.  She also found that the employee suffered a consequential psychological injury in the nature of aggravated depression, aggravated anxiety, and PTSD as a result of the two work-related assaults.  In her memorandum, the compensation judge noted that while she identified the issue as whether the employee suffered a consequential injury, that is a physical/mental injury, the parties tried the case as a PTSD case under Minn. Stat. § 176.011, subd. 15, which is a mental/mental injury.  The compensation judge concluded that the employee’s claims succeed under both theories.

In her findings, the compensation judge found Dr. Cronin’s opinion was more persuasive than that of Dr. Arbisi on the issue of whether the employee suffered a compensable PTSD injury.  In her memorandum she identified the following factors in support of her accepting the opinion of Dr. Cronin:

The compensation judge also explained that she found Dr. Arbisi’s opinion less credible in part because he “downplays the trauma the employee experienced based on his dubious conclusion that she did not sustain a significant physical injury.  . . .  Being punched repeatedly in the face would seem to be a classic example of threatened serious injury, regardless of the injury sustained.  Dr. Arbisi’s unrealistic view of the attacks calls all of his conclusions into question.” (Mem. at 11.)  The compensation judge also noted that Dr. Arbisi concluded that the employee was not credible regarding avoidance because she “continued to work at the school” for a period of time after the attacks.  The compensation judge said “this is a gross over-simplification.  The employee tried to continue working, but even with restrictions, she suffered panic attacks, bouts of crying, and extreme anxiety when she saw or heard the student who attacked her.  Ultimately, even working with a different one-on-one special needs student was too anxiety-producing and she was forced to leave the school district.”  (Mem. at 11-12.)

The compensation judge also concluded that even if the employee did not suffer from PTSD, she still had a compensable injury in the form of a physical injury resulting in mental consequences.  The compensation judge wrote that “the forceful blows that caused the employee’s physical injuries also caused her emotional trauma.  The gist of this claim is that the physical attack caused physical injury and the stress of being physically injured resulted in consequential psychological injuries.”  (Mem. at 11.)

The employer and insurer appeal.

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 employer and insurer argue that the employee did not raise a consequential mental injury claim at hearing, and regardless, substantial evidence in the record does not support such a claim.  They also argue there is not substantial evidence to support a finding that the employee suffered a compensable PTSD injury.  We are not persuaded by the employer and insurer’s arguments.

First, at the commencement of the hearing, the compensation judge directly identified a consequential injury as an issue before her.  (T. 7.)  In fact, whether the employee suffered a compensable direct PTSD injury was not actually identified by the compensation judge as an issue, although the parties tried that issue before the compensation judge.  Regardless, the compensation judge clearly identified the issue to be whether the employee suffered a consequential injury as a result of the physical attacks she suffered at the hands of the student.  Counsel for the employer and insurer agreed with the compensation judge’s recitation of the issue.  Their argument that they were denied due process and a fair opportunity to defend the consequential injury claim is simply not supported by the record.

Second, substantial evidence supports the compensation judge’s conclusion that the employee suffered a consequential psychological injury.  When an employee suffers a physical injury at work and the physical injury aggravates, accelerates or precipitates a mental injury, the mental injury is compensable.  Hartman v. Cold Spring Granite Co., 243 Minn. 264, 271, 67 N.W.2d 656, 660, 18 W.C.D. 206, 212 (1954); see also Meils by Meils v. N.W. Bell Telephone Co., 355 N.W.2d 710, 715, 37 W.C.D. 164, 169-70 (Minn. 1984) (the employee’s work injury was a substantial contributing cause in the development of a serious mental disturbance which ultimately resulted in the employee’s suicide thereby making the employee’s death compensable).

Third, case law supports the proposition that an assault can result in a compensable psychological injury.  In Mitchell v. White Castle Syst., Inc., 290 N.W.2d 753, 32 W.C.D. 288 (Minn. 1980), a waitress at a restaurant was slapped across the face by a customer.  She developed blurred vision, dizzy spells, ear pain, a humming sensation in her head, and numbness in her hands and feet.  She also developed mental health issues of nervousness, distraction, and forgetfulness.  The evidence demonstrated that prior to the incidents she had been a happy person.  After the incident, she went into a deep depression, no longer interacting with her husband and children.  Id. at 754-55, 32 W.C.D. at 289-90.  The supreme court affirmed an award of benefits as a result of the psychological injuries suffered by the employee despite the lack of a specific organic injury to the employee’s head.  Id. at 756, 32 W.C.D. at 292.

Here, the employee was subject to two violent attacks.  She suffered a concussion and permanent damage to her eye.  While neither the concussion nor the eye injury have led to any permanent work restrictions, there is a permanent physical change resulting from the assault.  She testified to some difficulties going from outside to inside, or vice-versa, due to light changes.  The employer and insurer admit the employee’s physical injuries of the concussion and the permanent eye damage.

The employee also suffered ongoing psychological injury as a result of the same two attacks.  The compensation judge found the employee’s testimony regarding her symptoms to be credible and accepted the medical opinion of Dr. Cronin that the employee’s psychological symptoms were a direct result of the physical attack.   Substantial evidence supports this conclusion.

While most mental/mental injuries are not compensable, Minn. Stat. § 176.011, subd. 15(a) and (d) provide that work-related PTSD injuries are compensable under the Workers’ Compensation Act.  The statute has two basic requirements.  First, the PTSD diagnosis must be made by a licensed psychiatrist or psychologist.  Second, the diagnosis must be that which is “described in the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association.”

In Smith v. Carver Cnty., 79 W.C.D. 483 (W.C.C.A. 2019), rev’d, 931 N.W.2d 390, 79 W.C.D. 495 (Minn. 2019), this court concluded that the statutory language required a compensation judge to critically analyze the expert opinion to be sure the psychiatrist or psychologist diagnosing PTSD followed the criterion-by-criterion requirements of the DSM.  The supreme court reversed this court, however, stating that a compensation judge is not to analyze the psychological opinion under the DSM, but rather should ascertain whether that opinion is sufficiently based upon the DSM in determining whether the employee has PTSD.  Smith, 931 N.W.2d at 398, 79 W.C.D. at 507.

In this case, there were two competing opinions, that of Dr. Cronin and that of Dr. Arbisi.  As the compensation judge noted, Dr. Cronin and Dr. Arbisi not only authored reports reflecting conflicting opinions, but issued subsequent supplementary reports “essentially disparaging each other and reiterating their previous opinions.”  (Finding 29.)  Among the criticisms leveled by Dr. Arbisi was that Dr. Cronin did not appropriately follow the DSM-V.  Dr. Cronin accused Dr. Arbisi of the same.

Both doctors based their opinions on the DSM-V.  The compensation judge, following the guidance of the supreme court, did not compare the employee’s symptoms against the DSM and then evaluate whether the opinions of Dr. Arbisi and Dr. Cronin followed each criterion of the DSM.  Instead, the compensation judge critically reviewed the medical evidence, the testimony, and the opinions of both doctors.

After engaging in that critical analysis, the compensation judge accepted the opinion of Dr. Cronin over that of Dr. Arbisi, and as discussed earlier, she explained in detail why she reached her conclusions.  In short, the compensation judge was not persuaded by Dr. Arbisi because he downplayed the severity of the attacks due to his opinion that the employee did not suffer serious injury and had an absence of permanent physical restrictions, and because her attempts to return to work suggested a lack of avoidance features as required by the DSM-V.  Instead, the compensation judge accepted the opinion of Dr. Cronin because he relied upon the employee’s description of the attacks and her subsequent symptoms.  The compensation judge found the employee credibly described the seriousness of the attack, the fear which it caused her, and the long-term psychological consequences including an increase in her symptoms each time she returned to the school building and her fear of special needs and loud children.  On these bases, Dr. Cronin opined that the employee suffered from PTSD as defined by the DSM-V as a result of her work injuries and the compensation judge accepted that opinion as persuasive.  Substantial evidence supports the compensation judge’s findings and choice of expert.  See Gianotti, 889 N.W.2d at 803, 77 W.C.D. at 126; Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  For these reasons, we affirm the compensation judge’s Findings and Order, served and filed August 15, 2019.