CAUSATION – PSYCHOLOGICAL CONDITION; CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s findings that the employee had been diagnosed with post-traumatic stress disorder (PTSD) by a licensed psychologist and that the claimed work injuries were substantial contributing factors to the employee’s development of PTSD.
TEMPORARY TOTAL DISABILITY – SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee had been restricted from working and the award of 130 weeks of TTD benefits.
Compensation Judge: Miriam P. Rykken
Attorneys: Daniel C. Swenson, Robert Wilson & Associates, P.A., Minneapolis, Minnesota, for the Respondent. Timothy P. Jung, Katie H. Storms, and João C.J.G. de Medeiros, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota, for the Appellant.
Affirmed.
GARY M. HALL, Judge
The self-insured employer appeals the compensation judge’s findings that the employee had been diagnosed with post-traumatic stress disorder (PTSD) by a licensed psychologist, that she had sustained a temporary back injury during an altercation with an inmate on September 14, 2016, that the claimed work injuries on September 12 and 14, 2016, were substantial contributing factors to the employee’s development of PTSD, and the judge’s award of temporary total disability benefits. We affirm.
This matter was previously considered by this court and was remanded to the compensation judge in Petrie v. Todd Cnty., 78 W.C.D. 631 (W.C.C.A. 2018), which is incorporated herein by reference.
Tami L. Petrie, the employee, was working as a correctional officer for Todd County, the employer, when she was involved in altercations with inmates on September 12 and 14, 2016. During the first incident, an inmate lunged at the employee as she entered a cell, requiring her to restrain the inmate. The next incident involved an inmate trying to grab medications from the employee and push his way out of a cell. After the altercation, a handmade weapon was found hidden in the inmate’s cell. On September 20, 2016, the employee filed a first report of injury stating she had been hit on her back.
The employee reported experiencing difficulty with sleeping and anxiety as a result of these work incidents and was diagnosed with psychological injuries, including post-traumatic stress disorder (PTSD), acute stress disorder, and major depression by multiple providers. On September 22, 2016, the employee was taken off work and began attending therapy sessions with Patti Venekamp, M.S., L.P., a licensed psychologist. The employee was evaluated by Kelsey Landis, M.S., and reported flashbacks, avoidance, hypervigilance, being easily startled, worry, anxiety, and fear due to the incidents. Pamela Becker, M.A., treated the employee with cognitive behavior therapy, opined that the employee met the criteria for PTSD, and recommended that the employee not return to work in January 2017. Susan K. Rutten Wasson, M.D., noted the employee’s increasing symptoms of anxiety, agoraphobia, and panic attacks, and opined that the employee had PTSD. The employee also had therapy sessions with Greta Kramer, M.S., who diagnosed PTSD and depression based on the employee’s report of symptoms including depression, anxiety, flashbacks, intrusive recollections, avoidance, diminished interests, feeling detached, persistent negative beliefs and emotions, hypervigilance, and irritability. In September 2017, Ms. Kramer opined that the employee was not ready to return to employment.
On January 9, 2017, the employee filed a claim petition alleging work-related PTSD and a back injury and seeking temporary total disability (TTD) benefits, medical treatment expenses, and a rehabilitation consultation. The employee was evaluated at the employer’s request by Dr. Scott M. Yarosh, a licensed psychiatrist, who diagnosed major depression, dependent personality, malingering, and PTSD, but opined that the employee’s psychiatric condition was caused by pre-existing factors and past personal trauma. Dr. Yarosh concluded that the employee’s work incidents did not cause or aggravate her pre-existing mental health condition. Based on this opinion, the employer denied the employee’s claim.
After a hearing on February 8, 2018, the compensation judge found that Dr. Yarosh’s opinion did not meet the statutory criteria for a diagnosis of PTSD under Minn. Stat. § 176.011, subd. 15(d), and denied the employee’s claims. The judge did not consider whether the employee’s PTSD condition was causally related to her work incidents or whether the employee’s injury could be considered a “physical-mental” injury. The employee appealed the decision to this court.
On appeal, this court noted that Minn. Stat. § 176.011, subd. 15(d), does not require that the diagnosis of PTSD by a licensed psychiatrist or psychologist include an opinion regarding causation for that condition and determined that whether the employee’s PTSD condition is causally related to a work incident is a separate issue and a question of fact for the compensation judge considering the entire record. We held that the compensation judge erred by not addressing the issue of whether the employee had sustained a physical-mental injury, which had been raised by the employee. The court reversed the compensation judge’s finding that the employee was not diagnosed with PTSD, vacated the judge’s denial of claimed benefits, and remanded the matter for consideration of whether the September 2016 work incidents caused, aggravated, or precipitated the employee’s mental condition of PTSD and whether the employee had sustained a physical-mental injury. Petrie v. Todd Cnty., 78 W.C.D. 631 (W.C.C.A. 2018).
The employee continued to seek treatment for her mental health condition. She met with psychologist Toni Murphy, M.S., L.P. In a report dated October 29, 2018, Ms. Murphy diagnosed the employee with PTSD and major depressive disorder, and stated that the employee’s September 2016 work incidents were substantial contributing factors to her PTSD condition and her need for psychological treatment. Ms. Murphy opined that the employee could not seek or maintain employment. The employee also applied for and received disability benefits through PERA, a public employee retirement program, and the Social Security Administration. In support of the PERA disability benefits application, Dr. Rutten Wasson opined that the employee could not work as of January 2018.
Dr. John O’Neil conducted an independent psychological examination of the employee at the employer’s request. In a report dated October 6, 2019, he stated that the employee was predisposed to anxiety and depression due to her personal history. Dr. O’Neil opined that the employee did not meet all of the criteria under the DSM-5 for a PTSD diagnosis because she was not involved in an incident that exposed her to actual or threatened death, serious injury, or sexual violence under criterion A and she did not exhibit criterion B intrusion symptoms. Dr. O’Neil concluded that the employee was not totally disabled and that her treatment was not causally related to the 2016 work incidents.
Dr. Michael Keller examined the employee, conducted a psychological assessment of the employee, and issued a report dated December 30, 2019. Dr. Keller found that the employee met all required diagnostic criteria for PTSD in the DSM-5 and diagnosed her with chronic PTSD, major depressive disorder, and anxiety disorder. He opined that her condition was a result of the work-related traumatic event exposures in September 2016. Dr. Keller also found that the employee had suffered a mental injury as a result of her physical work injury to her back sustained September 14, 2016, which was a clinically significant and functionally impairing exacerbation of the mental injury caused by the September 12, 2016, incident. He further indicated that the employee had work restrictions related to her mental health condition, including a permanent restriction from employment as a first responder and, for the foreseeable future, that her work be limited to part-time, day-shift hours with limited drive time and a flexible schedule.
On remand, a hearing was held before the same compensation judge on July 29, 2020. The applications, supporting medical documentation, and decisions from PERA and the Social Security Administration were submitted into evidence as exhibits at the hearing on remand. In a Findings and Order served and filed October 2, 2020, the compensation judge found that the employee had been diagnosed with PTSD by a licensed psychologist, that she had sustained a temporary back injury during an altercation with an inmate on September 14, 2016, and that the claimed work injuries on September 12 and 14, 2016, were substantial contributing factors to the employee’s development of PTSD. The judge awarded TTD benefits, rehabilitation services, medical expenses, intervention claims, and 20 percent permanent partial disability. The employer 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).
On appeal, the employer argues that there is inadequate foundation for Dr. Keller’s opinion and that the judge did not specifically find a causal relationship between the back injury and any mental injuries. The employer also contends that the judge’s findings are ambiguous as to whether the basis for the finding of PTSD was made under Minn. Stat. § 176.011, subd. 15(b), or as a physical-mental injury. As a result of these alleged errors, the employer asserts the judge’s findings are insufficient for this court’s review, the decision should be reversed, and the matter should be remanded for reconsideration.
In awarding benefits on remand, the compensation judge relied on Dr. Keller’s opinion that the employee met the DSM-5 diagnostic criteria for PTSD. Generally, this court must affirm a compensation judge’s choice between competing expert opinions “unless the facts assumed by the expert in rendering his or her opinion are not supported by the evidence.” Pelowski v. K-Mart Corp., 627 N.W.2d 89, 93, 61 W.C.D. 276, 280 (Minn. 2001) (citing Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985)). On appeal, the employer argues that there is inadequate foundation for Dr. Keller’s opinion. The employee asserts that Dr. Keller’s opinion has adequate foundation and that the employer did not object to the foundation of this opinion at the time of the hearing.
An expert opinion lacks adequate foundation when the opinion does not include the facts or data upon which the expert relied in forming the opinion, there is no explanation of the basis for the opinion, or the facts assumed by the expert in rendering the opinion are not supported by the evidence. Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017). The employer asserts Dr. Keller’s opinion did not satisfy criterion A for PTSD in DSM-5 as required by Minn. Stat. § 176.011, subd. 15(d), because Dr. Keller did not explain how the altercation exposed the employee to actual or threatened death, serious injury, or sexual violence.
In order to challenge foundation of an expert opinion on appeal, however, a party must make an objection on that basis at the hearing. See Sirian v. City of St. Paul Pub. Works, 77 W.C.D. 133, 140 (W.C.C.A. 2017). The employer did not object to Dr. Keller’s opinion, as offered by the employee and admitted into evidence at the hearing, on the basis of lack of foundation and the compensation judge did not err by considering that opinion.
In determining whether the employee met the criteria for a PTSD diagnosis, the compensation judge relied on Dr. Keller’s opinion that the employee met all required diagnostic criteria for PTSD in the DSM-5 and that her condition was a result of the work-related traumatic event exposures in September 2016. Dr. Keller disagreed with Dr. O’Neil’s opinion that the employee did not meet criterion A, being involved in an incident that exposed her to actual or threatened death, serious injury, or sexual violence, for a PTSD diagnosis under the DSM-5, or criterion B for intrusion symptoms. The compensation judge accepted Dr. Keller’s opinion as sufficiently based upon the DSM criteria for diagnosing PTSD and adopted his opinion as persuasive. See Smith v. Carver Cty., 931 N.W.2d 390, 398-99, 79 W.C.D. 495, 507-08 (Minn. 2019). Other medical professionals also diagnosed the employee with PTSD and opined that this condition was causally related to the work incidents in 2016. Substantial evidence supports the compensation judge’s finding that the employee has PTSD and that the September 2016 incidents were substantial contributing factors to this condition. Accordingly, we affirm.[2]
The employee claimed TTD benefits from September 21, 2016, and the compensation judge awarded 130 weeks of TTD benefits pursuant to Minn. Stat. § 176.101, subd. 1(k). The judge noted that the employee had been restricted from working and that she had been awarded PERA duty disability benefits in September 2018. Dr. Rutten Wasson, Ms. Kramer, and Ms. Murphy opined that the employee was not able to work.
The employer argues that the TTD award is not supported by the evidence because it is contrary to Dr. Keller’s opinion, adopted by the compensation judge, which stated that the employee was able to work with restrictions. We note that Dr. Keller evaluated the employee in late 2019, and that he did not address whether the employee had restrictions before the date of his evaluation. Moreover, a compensation judge need not accept an entire medical opinion in order to rely on part of the opinion. See City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980); Meyers v. Minn. Elec. Supply Co., 69 W.C.D. 405, 417 (W.C.C.A. 2009); Proffit v. Minn. Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992).
In addition, the employer contends that the judge erred by relying on the employee’s receipt of disability benefits awarded through PERA. We disagree. The compensation judge mentioned the employee’s receipt of PERA duty disability benefits[2] in support of her award of TTD benefits. The employee also received social security disability benefits. While the employee’s qualification for these benefits is not binding in a workers’ compensation proceeding, the award of benefits and its supporting medical opinions may be considered as evidence of the employee’s lack of ability to work. See Cavegn v. City of St. Paul, No. WC09-5031 (W.C.C.A. Mar. 27, 2011) (while the legal determination of disability for the purpose of eligibility for PERA or social security benefits is not binding under a workers’ compensation claim, the medical opinions submitted in support of the claims have evidentiary value). The employee’s claim for PERA duty disability benefits was supported by opinions from Ms. Murphy and Dr. Rutten Wasson and was approved on September 18, 2018, effective January 2018. The judge did not err by considering the employee’s receipt of disability benefits under PERA and the evidence underlying that award in determining whether the award of TTD benefits was supported by the record.
Substantial evidence supports the compensation judge’s award of TTD benefits, including medical opinions regarding the employee’s ability to work and the employee’s testimony, which the judge found to be credible, and we affirm.
[1] The employer also contends that while the compensation judge found that the employee had sustained a temporary back injury on September 14, 2016, the judge did not adequately address the issue of whether a causal relationship existed between the back injury and any mental injuries, which would support the employee’s claim of a physical-mental injury. Given our affirmance of the compensation judge’s finding that the employee has PTSD and that the September 2016 incidents were substantial contributing factors to this condition, we decline to address the employer’s arguments on the employee’s alternative theory of compensability.
[2] “Duty disability” under PERA is defined by Minn. Stat. § 353.01, subd. 41, as a physical or psychological “condition that is expected to prevent a member, for a period of not less than 12 months, from performing the normal duties of the position . . . and that is the direct result of an injury incurred during, or a disease arising out of, the performance of inherently dangerous duties that are specific to the [position] . . . .”