DOUGLAS JUNTUNEN, Employee/Appellant, v. CARLTON CNTY. and MINN. COUNTIES INTERGOVERNMENTAL TR., Self-Insured Employer/Respondent, and BLUE CROSS BLUE SHIELD OF MINN., Intervenor.

The employee appeals from the compensation judge’s denial of his claim that he sustained post-traumatic stress disorder (PTSD) arising from his work for the employer.  We reverse and remand for additional findings consistent with this opinion.

In August 2001, the employee, Douglas Juntunen, began working as a full-time deputy sheriff for the self-insured employer, Carlton County. Before this employment, the employee earned an associate degree in law enforcement, had an internship with the Duluth Police Department, and worked as a police officer for the St. Paul Police Department.  At the time he was hired by the employer, he had no mental health diagnoses or treatment.  The employee underwent a pre-employment psychological evaluation on July 17, 2001, and was determined psychologically fit for duty as a deputy sheriff.

During the course of his career as a deputy sheriff, the employee encountered many tragic and traumatic events, including having part of his squad car severely damaged during a high-speed car crash, witnessing the suicide of a suspect, responding to a traffic accident where a teenager’s head was impaled by a steering wheel, witnessing another high-speed crash involving a car on fire and a driver with a self-inflicted gunshot wound, and being shot at by suspects.  In 2016, the employee learned that a fellow deputy, a former partner, committed suicide after retiring from the sheriff’s department.

Shortly after his former partner’s suicide in 2016, the employee began experiencing emotional symptoms and sought treatment.  He attended three sessions of counseling at Sand Creek as part of an employee assistance program, reporting that he was suffering from work-related PTSD^[1] and was struggling emotionally.  The counselor referred the employee for treatment with Beth Jordan, a licensed professional clinical counselor, beginning in December 2016.  Ms. Jordan initially diagnosed the employee with depression and an adjustment disorder.  The employee reported some improvement from the therapy sessions as well as from eye-movement desensitization reprocessing (EMDR) treatment.  After a few visits, treatment was discontinued in February 2017. In December 2018, the employee returned to Ms. Jordan to reinitiate treatment, and she administered a diagnostic screening test that suggested the employee suffered from PTSD.  In August 2019, the employee reported to Ms. Jordan that he had additional traumas he wished to discuss and include in his treatment.  The employee’s treatment with Ms. Jordan continued through the date of the hearing.

The employee was evaluated by Dr. Michael Keller, a licensed psychologist, on August 20, 2019, at the request of the employee’s attorney.  Dr. Keller described the employee’s symptoms, detailed a variety of different work-related traumas that the employee experienced as a deputy sheriff, gave a general summary of the employee’s background, and outlined the results of the variety of diagnostic tests he administered to the employee.  Dr. Keller diagnosed the employee with PTSD per DSM-V,^[2] major depressive disorder, and anxiety disorder.  Dr. Keller also opined that one of the substantial contributing causes of these diagnoses was the employee’s work as a law enforcement officer, including his work-related traumatic experiences as a deputy sheriff.  Dr. Keller recommended psychotherapy and psychotropic medication and opined that with treatment the employee’s PTSD symptoms would improve, but without treatment the symptoms would likely become worse.

Following the report of Dr. Keller, on September 13, 2019, the employee reported to his employer that he had work-related PTSD and that he was, according to Dr. Keller, not fit for duty as a deputy sheriff.  The employee was placed on leave and the employer completed a first report of injury.  On September 25, 2019, the employer completed a notice of primary liability determination denying primary liability which stated, “The employee has been diagnosed with PTSD per the IME report of Dr. Michael Keller, Ph.D.  Upon review of Dr. Keller's report and the medical records of the employee’s treating providers, MCIT^[3] respectfully defers primary liability pending the results of an IME with a psychologist or psychiatrist of MCIT’s choosing.  We are in the process of scheduling an IME.”^[4]  (Ex. W.)  However, no medical examination was scheduled at that time.

On September 25, 2019, Dr. Keller completed a Public Employees Retirement Association (PERA) disability medical report where he again diagnosed the employee with PTSD, major depressive disorder, and anxiety disorder, which he related to the employee’s work as a deputy sheriff.  He opined that the employee was unable to perform his work duties and would be unable to do so for at least one year.  Dr. Keller expected that the employee would be able to look for other work after appropriate treatment.

On January 28, 2020, the employee resigned from his employment as a deputy sheriff, notifying the employer that he was approved for PERA duty disability^[5] and that his treating physicians had determined he was unable to perform the duties of a deputy sheriff.  He testified that his symptoms have improved since leaving his employment with Carlton County, but have not fully resolved, and that he has some level of mental health symptoms every day.

On February 28, 2020, the employee filed a claim petition seeking various benefits including wage loss, permanent partial disability (PPD), medical expenses, and vocational services.  As part of the litigation, the employer arranged for the employee to be examined by Dr. Paul Arbisi, a licensed psychologist.  Dr. Arbisi met with the employee on July 20, 2020, approximately 10 months after the employee reported his PTSD diagnosis to the employer, and issued his report on September 8, 2020.  Dr. Arbisi noted that he was asked to render an opinion as to whether the employee suffered from any psychological or psychiatric conditions, and if so, whether such conditions were a result of his employment as a deputy sheriff.  He was also asked to evaluate treatment options, to determine whether the employee was at maximum medical improvement (MMI), and to assign work restrictions, if appropriate.  Dr. Arbisi did not state whether he was evaluating the employee for a PTSD diagnosis at the time of the examination or when the employee went off of work in September 2019.

Dr. Arbisi interviewed the employee regarding his work history, personal history, activities, functioning, and symptoms.  Dr. Arbisi also reviewed the employee’s medical history and records, including the report of Dr. Keller, and performed various diagnostic tests.  Dr. Arbisi criticized Dr. Keller’s evaluation, evaluation methods, and interpretation of diagnostic testing tools. Despite these criticisms, he did not indicate whether he agreed or disagreed with Dr. Keller’s August 2019 diagnosis of PTSD.  Dr. Arbisi also described the various criteria to diagnose PTSD under DSM-V and opined as to whether the employee met the various criteria.  From a mental health perspective, Dr. Arbisi diagnosed the employee as meeting the criteria for major depressive disorder in partial remission.  He opined that the depressive disorder was not related to the employee’s work as a deputy sheriff.  As to PTSD, Dr. Arbisi stated that the employee did not report current symptoms associated with PTSD during his evaluation.

The employee was sent by his attorney for another psychological evaluation with Dr. Nicole Slavik, a doctor of psychiatry and a licensed psychologist, on February 25, 2021.  In a report dated April 22, 2021, Dr. Slavik opined that the employee suffered from chronic PTSD, per DSM-V, caused by his work-related traumatic experiences as a deputy sheriff.  She opined that he would benefit from individual outpatient treatment including EMDR, cognitive processing therapy, prolonged exposure therapy, or accelerated resolution therapy, in addition to traditional talk therapy.  She also recommended other treatment strategies as well as behavioral modifications.  Finally, she recommended the employee continue to take medications as prescribed and work with his provider on adjusting those as needed.  Dr. Slavik described the criteria required by DSM-V for a PTSD diagnosis and why, in her opinion, the employee met the criteria.  She gave her opinions regarding work restrictions, MMI, PPD, the reasonableness and necessity of the to-date medical care, as well as future treatment recommendations.  Finally, Dr. Slavik detailed her disagreements with Dr. Arbisi’s opinion and evaluation.

At his deposition on April 26, 2021, Dr. Arbisi reiterated many of the opinions contained in his report and explained how he conducted his interview of the employee.  He described the various criteria that DSM-V requires for a diagnosis of PTSD and laid out his reasons why the employee did not meet some or all of the criteria.  Dr. Arbisi stated that he looked at the 30-day window of time immediately preceding his evaluation to determine whether the employee had symptoms sufficient to meet the criteria for a diagnosis of PTSD under DSM-V, and that both Dr. Keller and Dr. Slavik had done the same during their respective examinations of the employee.  He explained that a person could have PTSD, undergo treatment, and then no longer have the full array of PTSD symptoms, and that person would be characterized as having “PTSD, in remission,” or “trauma-related condition, not otherwise specified.”  Dr. Arbisi reiterated his opinion that the employee suffered from major depressive disorder.  When asked why he concluded that the employee did not suffer from PTSD, Dr. Arbisi answered, “Primarily because he did not report symptoms consistent with PTSD at the time that I evaluated him.”  (Ex. 1, Dr. Arbisi deposition at 40) (emphasis added).  On cross-examination, Dr. Arbisi stated that he was not asked to determine whether the employee had a history of PTSD, but whether he had PTSD at the time of the evaluation and during the 30 days preceding the evaluation.^[6]

Dr. Slavik testified by deposition on May 11, 2021.  She testified that it was still her opinion that the employee continued to meet the criteria of PTSD according to DSM-V, and that this condition was substantially caused by his work experiences as a Carlton County deputy sheriff.  Dr. Slavik expressed the opinion that PTSD symptoms change over time, that they are variable, and that they can become less frequent as time progresses.  She agreed that it is common for people with PTSD to have a decrease in symptoms, although in some cases, the symptoms can worsen again after a triggering event.  She opined that the employee had some improvement in his symptoms since he was first taken off work in September 2019 until she saw him in February 2021, but that he continued to meet the criteria for PTSD under DSM-V.  During cross-examination, Dr. Slavik was asked about the 30-day window that clinicians use to evaluate and diagnose PTSD and she agreed that a person could have PTSD criteria at one point and not meet the PTSD criteria under DSM-V at another point in time.  On re-direct examination, Dr. Slavik noted that the diagnostic tools used by clinicians limit them to assessing a patient’s current symptomology and does not allow historic diagnoses, such that an evaluation that shows a patient without PTSD does not mean that the patient did not have PTSD in the past.  She stated that she was not aware of any psychologist or psychologist who opined that at the time that the employee went off work he did not have PTSD.

Ms. Jordan wrote a report dated March 23, 2021.  She described herself as a therapist specializing in first responder stress and PTSD and stated that she had a 20-year background as a police officer.  She diagnosed the employee with PTSD under DSM-V criteria and disagreed with Dr. Arbisi’s reports and opinions.

This matter came on for hearing before a compensation judge on May 13, 2021.  In her Findings and Order dated June 3, 2021, the compensation judge made several findings of fact outlining the evidence that was presented to her, including the various diagnostic opinions of the many experts.  The compensation judge specifically found that the employee did not sustain PTSD arising out of his employment on August 20, 2019, and denied the employee’s claims.  In her memorandum, the compensation judge discussed Minn. Stat. § 176.011, subd. 15, and stated, “[a]lthough the Workers’ Compensation Act provides that PTSD in certain categories of workers is presumed to be causally related to their work, the employee still has the initial burden to prove that he or she has the occupational disease of PTSD to trigger the statutory presumption.”  (Mem. at 10.)  The employee appeals.

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 argues on appeal that the compensation judge erred, as a matter of law, in applying the statutory analysis to determine whether his claimed PTSD condition was related to his work as a deputy sheriff.  He argues that the evidence presented required the compensation judge to apply the statutory presumption that his PTSD diagnosis was a work-related condition, that the compensation judge erred as a matter of law in not applying the presumption, and that the employer had the obligation to rebut the presumption but failed to do so as called for by the statute.  Thus, he argues, he should be awarded workers’ compensation benefits for PTSD.  On the other hand, the employer argues that this case is simply a matter of a compensation judge choosing between competing medical experts and that substantial evidence supports the compensation judge’s choice.

Under Minnesota workers’ compensation law, employees who suffer mental injury as a result of mental stimuli generally do not have compensable workers’ compensation claims. Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981); Hurst v. Caledonia Haulers, Inc., WC21-6400 (W.C.C.A. Sept. 27, 2021).  In 2013, the Minnesota Legislature amended the law to allow for compensable workers’ compensation claims due to a mental injury caused by mental stimuli when the mental condition is PTSD, as described by the latest version of the DSM, and if the condition is diagnosed by a licensed psychiatrist or psychologist.  See 2013 Minn. Laws, ch. 70, art. 2, §§ 1 and 2 (amending Minn. Stat. § 176.011, subds. 15 and 16, and establishing PTSD as a compensable occupational disease).  In 2018, the law was amended again to add subdivision 15(e) to Minn. Stat. § 176.011, which reads, in part:

When applying a statutory presumption, the first step is to determine whether the employee has satisfied the prerequisites required by the presumption.  Mersy v. Morrison Cnty., 61 W.C.D. 401, 405-06 (W.C.C.A. 2001).  When the requirements of a rebuttable statutory presumption are met, the fact presumed by the statute has been proven, absent rebuttal with substantial proof to the contrary.  Linnell v. City of St. Louis Park, 305 N.W.2d 599, 601, 33 W.C.D. 602, 605-06 (Minn. 1981).  If the opposing party rebuts the presumption, then the ultimate burden of proving the fact shifts back to the initial party.  Jerabek v. Teleprompter Corp., 255 N.W.2d 377, 380, 29 W.C.D. 621, 625 (Minn. 1977).  Whether the requirements of the statutory presumption have been met, and if so, whether the opposing party sufficiently rebutted the presumption, are questions of fact for the compensation judge.  See Worden v. Cnty. of Houston, 356 N.W.2d 693, 696, 37 W.C.D. 189, 192 (Minn. 1984) (where there is competing evidence regarding the prerequisites of the presumption or rebuttal of the presumption, the court defers to the fact-finding responsibilities of the trier of fact, but if there is no competing evidence, the presumption must be applied).

Minn. Stat. § 176.011, subd. 15(e), sets out a clear presumption for work-related PTSD if certain factors are met.  The employee must not have a prior diagnosis of PTSD, must have been actively employed in one of the enumerated occupations, and was disabled from the occupation due to a PTSD diagnosis made by a licensed psychologist or psychiatrist pursuant to the most recently published version of the DSM.  When those factors are met, the presumption applies, and the employee has shown a compensable work-related PTSD condition unless the employer rebuts the presumption by presenting “substantial factors.”  Applying the statute to the facts of this case, at the time of the disablement in September 2019, the employee was actively working as a deputy sheriff, one of the occupations identified in the statute.  He did not have a previous PTSD diagnosis.^[8]  He was diagnosed with PTSD pursuant to DSM-V by Dr. Keller, a licensed psychologist, in August 2019, and went off of work due to this diagnosis in September 2019.  The facts only support one conclusion, that the factors to invoke the presumption were met and the employee met his burden of going forward.  The employer argues that the compensation judge must find that the employee has PTSD before applying the presumption.  We disagree as the presumption applied when the statutory factors were met.

At the time the employer initially denied primary liability, it asserted a right under Minn. Stat. § 176.155, subd. 1, to have a doctor of its choosing examine the employee.^[9]  After the employee filed a claim petition, the employer scheduled him to be seen by Dr. Arbisi in July 2020 and that report was served in September 2020.  The employer relies upon that report as the substantial factor to rebut the presumption and to shift the ultimate burden of proof back to the employee.  As such, the employer asserts, the issue became a choice between competing medical opinions for the compensation judge.

We cannot agree with this position because Dr. Arbisi’s opinion did not rebut the presumption.  The presumption established that at the time of his disablement from work, the employee had compensable PTSD.  To rebut, the employer needed to offer evidence that at the time of the employee’s disablement, he did not have a PTSD diagnosis.^[10]  The employer failed to do so as Dr. Arbisi’s opinion was, at the time of his July 2020 evaluation and for the 30 days preceding that evaluation, that the employee did not have a PTSD diagnosis.  His opinion, in both his report and his deposition testimony, failed to address the issue surrounding the statutory presumption, specifically whether the employee had a diagnosis of PTSD in September 2019.  Because there were no substantial factors brought forth by the employer to rebut the prerequisites of the presumption, the statute applies, and the employee has met his burden of proof that he had work-related PTSD at the time of his disablement.  No further evaluation of the evidence by the compensation judge was necessary because the presumption was not rebutted.^[11]

The employer argues that the compensation judge’s adoption of Dr. Arbisi’s opinion as more persuasive than those of the employee’s experts,^[12] together with her finding that the employee does not have PTSD, form substantial evidence to support the compensation judge’s finding that the prerequisites for the statutory presumption were not present.  We disagree.  Dr. Arbisi’s opinion only addresses the 30-day window before his evaluation of the employee in July 2020.  Therefore, his opinion does not support the finding that the employee did not have a diagnosis of PTSD at the time of his disablement in September 2019.  Absent rebuttal, the presumption applies and the compensation judge’s finding that Dr. Arbisi’s opinion was more persuasive than those of the other experts is not determinative.

The compensation judge erred by not applying the statutory presumption found in Minn. Stat. § 176.011, subd. 15(e).  We reverse and hold that because there is no evidence disputing the employee’s PTSD diagnosis at the time of his disablement in September 2019, and because the employee otherwise met the remaining factors contained in the statutory presumption, the presumption applies and therefore the employee has proven that he has a compensable work-related PTSD claim.  We remand for additional findings regarding the claimed benefits.