RYAN CHRZ, Respondent, v. MOWER CNTY. and MINN. COUNTIES INTERGOVERNMENTAL TR., Self-Insured Employer/Appellant, and BLUE CROSS BLUE SHIELD OF MINN., Intervenor.

The self-insured employer appeals the compensation judge’s award of ongoing workers’ compensation benefits for the employee’s work-related post-traumatic stress disorder (PTSD) condition.  Because the employee no longer meets the specific requirements for a diagnosis of PTSD under Minn. Stat. § 176.011, subd. 15(d), he does not have a compensable mental injury under the Minnesota Workers’ Compensation Act and is not entitled to ongoing benefits.  We reverse in part and modify in part.

Ryan Chrz, the employee, was a deputy sheriff for Mower County, the employer.  Before he was hired in 2007, he underwent a pre-employment psychological evaluation, which showed no indication of substance abuse, depression, anxiety, or anger issues, and no career or family problems.  Thereafter, he began his career, at the age of 22, in Mower County where he had lived most of his life.

As a deputy sheriff, the employee personally witnessed several traumatic events involving co-workers and people he knew in Mower County.  Around 2011 or 2012, the employee responded to a vehicle that had crashed and caught fire.  Attempts to remove the driver from the vehicle were complicated by a rifle and ammunition in the vehicle causing rounds to fire.  There were signs of the driver trying to escape but he was trapped in his seat belt and died in the fire.  The employee knew the driver as a friend’s uncle and his father’s close friend.  After this incident, the employee could not wear a seat belt.  Most significant to the employee was an event that occurred in January 2017 in which the employee and a police officer were called to apprehend a man who had abducted a woman at knifepoint.  While attempting to apprehend the suspect, the employee and the officer were caught in an apartment stairwell while the suspect, who was positioned above them, threw an air conditioner and furniture striking the officer.  The officer shot the assailant in the forehead, killing him.  The employee climbed up and stepped over the deceased assailant to enter the top floor where he found the woman whom the assailant had abducted and sexually assaulted.  Since then, the employee has had flashbacks when using staircases with a similar layout or when there are people above him.  In addition, the employee has witnessed multiple gruesome suicides or aftermaths of suicides.  He began drinking heavily in January 2017 to self-medicate and to be able to sleep.

In January 2019, the employee responded to a call involving an out-of-control youth at a fast-food restaurant.  The employee used physical force to control the youth and was investigated and charged with misdemeanor assault and officer misconduct.  (Ex. 3.)  On February 6, 2019, the employee was placed on administrative leave because of the incident.  Following thoughts of suicide ideation, the employee sought psychiatric care with Joshua Baruth, M.D., Ph.D., at the Mayo Clinic’s Department of Psychiatry and Psychology, on April 30, 2019.^[1]  Dr. Baruth diagnosed the employee with PTSD, moderate to severe alcohol use disorder, and major depression.  He prescribed medication and referred the employee to a trauma-focused therapist.

On June 2, 2019, the employee was diagnosed with severe alcohol use disorder, binge pattern, by Dr. Terry Schneekloth at the Mayo Clinic.  Dr. Schneekloth recommended an outpatient addiction treatment program and follow-up with Dr. Baruth.  The employee returned to Dr. Baruth on June 24, 2019, reporting better sleep with fewer and less intense nightmares and less irritability, anxiety, social isolation, and depression.  Dr. Baruth noted the employee’s improvement from medication.

The employee continued to take medication but did not seek alcohol counseling or psychotherapy.  On September 24, 2019, he was evaluated by Nicole Slavik, Ph.D., a licensed psychologist, at the request of his attorney.  Dr. Slavik took a history, reviewed multiple medical records, examined the employee, and administered tests to the employee.  Using the DSM-V, Dr. Slavik diagnosed the employee with PTSD, major depressive disorder in partial remission, and mild alcohol use disorder in early remission.  She recommended that the employee attend outpatient mental health treatment with a provider competent in the treatment of trauma and PTSD.  She directly attributed the PTSD diagnosis to the employee’s exposure to traumatic events while performing his duties as a deputy sheriff for the employer.

The employee’s condition worsened and included difficulty sleeping, alcohol use, and depressive thoughts.  He reported significant psychological stress related to the ongoing investigation of the January 2019 incident involving the assault charges.  On December 2, 2019, Dr. Baruth completed a report of workability indicating that the employee was unable to work as of April 30, 2019.  Dr. Slavik also opined that the employee was unable to perform law enforcement duties because of his work-related PTSD.  Effective March 31, 2020, the employee received duty-related disability benefits from the employer, which included monthly income and ongoing health insurance, and retired from his position.

The employee filed a claim petition on May 18, 2020, alleging entitlement to workers’ compensation benefits, including wage loss benefits beginning April 1, 2020.

The employee saw Paul Arbisi, Ph.D., L.P., a licensed psychologist, at the employer’s request.  Dr. Arbisi examined the employee, took a history from the employee, reviewed multiple medical records, administered multiple diagnostic tests, and reported his findings and conclusions in a narrative report of December 7, 2020.  Dr. Arbisi opined that the employee did not meet the criteria for PTSD under the specific criteria of the DSM-V.  He noted that the employee did not demonstrate avoidance behaviors regarding the January 2017 stairwell incident.  Instead, Dr. Arbisi diagnosed the employee with unspecified adjustment disorder and alcohol use disorder related to the pending charges against the employee for the altercation in January 2019.  Dr. Arbisi also testified by deposition that the employee did not follow the standard treatment protocol for PTSD of psychotherapy or trauma-focused treatment, and instead relied on medication to treat his symptoms.  Dr. Arbisi explained that PTSD symptoms can fluctuate over time, be treated, and ultimately resolve, and also opined that the employee would no longer have PTSD if the criteria of the DSM-V were not met.

The employee was examined again by Dr. Slavik in March 2021, which was followed by a narrative report of May 15, 2021.  She concluded that the employee’s condition had improved, and that he no longer met the diagnostic criteria of PTSD.  She changed the employee’s diagnosis from PTSD to “other specified trauma and stress related disorder” caused by the employee’s exposure to the traumatic events while performing his duties as a deputy sheriff for the employer.  Although the employee was no longer diagnosed with PTSD, Dr. Slavik testified that he was not cured and that he continued to have symptoms.  Dr. Slavik agreed that to meet the diagnosis of PTSD under the DSM-V, an individual must meet all the criteria, and if the PTSD criteria under the DSM-V are not met, she acknowledged that a different diagnosis would apply.  (Ex. C at 86.)  She explained that while the employee had met all the criteria for PTSD in the past, his symptoms had improved and were considered subthreshold for a current PTSD diagnosis.  She opined that the employee had reached maximum medical improvement (MMI) and assigned a 20 percent permanent partial disability Weber^[2] rating under Minn. R. 5223.0360, subp. 7.D(2).

Dr. Baruth reported on May 20, 2021, that the employee had been diagnosed with chronic PTSD and that he would need ongoing medication management and psychotherapy due to the chronic nature of his symptoms.  He opined that the employee should not work in law enforcement but agreed that there were other occupations in which the employee could work.

The matter went to hearing on June 2, 2021, to determine whether the employee sustained a compensable injury and whether he was entitled to medical, vocational rehabilitation, 20 percent permanent partial disability, and temporary total disability benefits from April 1, 2020, to the present and continuing.  The compensation judge found that the employee had sustained work-related PTSD on April 30, 2019, and that the presumption under Minn. Stat. § 176.011, subd. 15(e), applied.  She further found that Dr. Slavik had diagnosed PTSD from April 19, 2019, through March 30, 2021, but that from March 30, 2021, forward, the diagnosis was “other specified trauma-and stressor-related disorder.”  (Finding 23.)  The judge awarded payment of wage loss benefits from April 1, 2020, to the present and continuing.  She found that MMI was served on May 18, 2021, and awarded 20 percent permanent partial disability under Minn. R. 5223.0360, subp. 7.D(2), under a Weber rating.  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 contends that the judge erred in awarding ongoing benefits when the employee no longer had PTSD, arguing that the employee cannot be disabled because he no longer has a compensable personal injury under Minn. Stat. § 176.011, subd. 15(d).  The employer maintains that as of March 30, 2021, no licensed provider was of the opinion that the employee had PTSD as described in the most recent DSM-V, and therefore the medical evidence is uncontroverted that the employee did not have PTSD as defined by statute as of that date.  The issue before this court is whether a deputy sheriff who was diagnosed with PTSD, but no longer meets the diagnosis under the statutory criteria, is entitled to ongoing benefits under the Workers’ Compensation Act.  We review de novo the interpretation of statutory provisions in the Workers’ Compensation Act.  See Smith v. Carver Cnty., 931 N.W.2d 390, 395, 79 W.C.D. 495, 501 (Minn. 2019); Gilbertson v. Williams Dingmann, LLC, 894 N.W.2d 148, 151, 77 W.C.D. 313, 317 (Minn. 2017).

In the absence of a physical injury, a mental injury under the Act was historically non-compensable.  Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981).  In 2013, Minn. Stat. § 176.011, subd. 16, was amended to provide that a personal injury “means any mental impairment as defined in [Minn. Stat. § 176.011,] subdivision 15, paragraph (d).”  That statute only extended the definition of “mental impairment” to a diagnosis of PTSD by a licensed psychiatrist or psychologist.  Minn. Stat. § 176.011, subd.15(d).  PTSD is therefore the only stand-alone mental injury covered by the Act and is narrowly defined as “the condition as described in the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association.”  Id.  For peace officers meeting the above criteria, a PTSD diagnosis is presumed to be a work-related condition if not previously diagnosed.  Minn. Stat. § 176.011, subd. 15(e).

Here, the employee was diagnosed with PTSD on April 30, 2019, by Dr. Baruth and was later diagnosed with PTSD by Dr. Slavik, a licensed psychologist.  Dr. Slavik referenced the DSM-V criteria in her report, satisfying the statutory requirements for PTSD as a compensable personal injury under the Workers’ Compensation Act.  Furthermore, as a deputy sheriff, the employee’s diagnosis of PTSD was presumed to be a work-related condition as he had no previous diagnosis.  It was therefore reasonable for the judge to conclude that the employee sustained work-related PTSD on April 30, 2019.

With medication, the employee’s condition improved.  In March 2021, Dr. Slavik determined that the employee no longer met the definition of PTSD.  She acknowledged that to meet the diagnosis of PTSD under the DSM-V, an individual must meet all the criteria, and if not, a different diagnosis would apply.  On March 30, 2021, Dr. Slavik diagnosed a different condition, “other specified trauma and stressor related disorder,” which is not a stand-alone mental injury covered by the Workers’ Compensation Act and therefore is not a compensable personal injury.  See Schuette v. City of Hutchinson, 843 N.W.2d 233, 74 W.C.D. 169 (Minn. 2014).  While it is possible this new mental condition is a consequence of, or directly flowed from, the original PTSD injury, whether the employee suffered a consequential injury due to the PTSD was not an issue raised by the employee or addressed by the compensation judge.^[3]  We are bound to the issues raised at trial and on appeal and therefore cannot raise the issue here.  See Gianotti v. Indep. Sch. Dist. No. 152, 889 N.W.2d 796, 77 W.C.D. 117 (Minn. 2017).

The employee posits that PTSD as an occupational disease continues to be compensable as long as the employee remains disabled.  Citing Langlais v. Superior Plating, Inc., 226 N.W.2d 891, 894, 27 W.C.D. 790, 794 (Minn. 1975), the employee argues that the statutory framework requires employees to prove that they contracted an occupational disease only once, and after that, the analysis regarding compensability turns on whether the employee has experienced disablement resulting from the occupational disease.  We disagree with this analysis and with the argument that Langlais applies to the facts of this case.  In Langlais, the employee developed a lung condition, became disabled from work, improved, returned to work, and after renewed exposure to harmful chemicals became disabled from work again.  In finding two separate dates of disablement, the court held that the date of injury was not determined by the date when the employee contracts an occupational disease, but when the employee becomes disabled from it.  The court reasoned that an employee could work for years after contracting a disease yet not suffer disablement.  PTSD is different than other occupational diseases because the statutory limits that exist for PTSD do not exist for the other occupational diseases.  Here, the employee contracted the occupational disease of PTSD and became disabled, then improved to the point at which the occupational disease he contracted was no longer recognized as a compensable injury under the Act.

The employee also analogizes that the personal injury of PTSD is like the personal injury of work-related cancer, arguing that an employee who contracts cancer, but through treatment improves to the point that the cancer goes into remission, may no longer be disabled but may be entitled to certain benefits such as additional related medical treatment.  We disagree.  PTSD is not like any physical disease.  It is a stand-alone mental injury which was historically non-compensable and was only recently recognized as a personal injury with restrictive language.  Unlike cancer, there is no recognized remission of the PTSD condition under the DSM-V.^[4]  Had the legislation not limited mental injury to PTSD, and limited the PTSD definition to a diagnosis meeting the criteria in the DSM-V, the employee’s position that PTSD is no different than other physical personal injuries would be more persuasive.  As the statute indicates, PTSD means the condition as described in the most recent DSM.  The medical experts testified that when the DSM-V criteria were not met, the condition was not PTSD.  The judge adopted Dr. Slavik’s opinion that by March 31, 2021, the PTSD criteria were not met, the condition was not PTSD, and the employee’s diagnosis was a different mental health condition.

The intent of the legislature is that a DSM-V diagnosis is necessary for continuing PTSD treatment in workers’ compensation cases.  Statutes for other kinds of duty-related mental illness differ from the limited nature of PTSD under the Workers’ Compensation Act.^[5]  The Minnesota workers’ compensation treatment parameters limit medical treatment to those cases meeting the definition of PTSD under the DSM-V.  Minn. R. 5221.6700, subp. 6.^[6]  The treatment parameters, which were promulgated to establish reasonably required treatment, provide a framework for all phases of care from diagnosis to ongoing treatment for those employees suffering from PTSD.  Minn. R. 5221.6700; see also Minn. R. 5221.6020, subp. 1.  Extending coverage to other diagnoses under the DSM-V would in effect amend the Workers’ Compensation Act, ignoring the carefully crafted legislative exception which is applicable only to PTSD.  As written, the statute restricts the interpretation to only those cases in which the employee has a diagnosis of PTSD under the DSM-V.^[7]

An employer’s liability for compensation under chapter 176 ends when an employee is no longer disabled.  Ewing v. Print Craft, Inc., 936 N.W.2d 886 (Minn. 2020) (citing Kautz v. Setterlin Co., 410 N.W.2d 843 (Minn. 1987)).  The compensation judge’s award of benefits for the period after the employee no longer had a compensable injury was legal error.  We modify Order 1 to award TTD benefits only through March 30, 2021, when the employee’s diagnosis changed.  We reverse the award of permanent partial disability and vocational benefits and the award of medical expenses for treatment after March 30, 2021.

The employee in this case had been diagnosed with PTSD caused by work-related trauma.  By the time of the hearing, however, Dr. Slavik had opined that the employee no longer met all criteria for a PTSD diagnosis under the DSM-V.  The question presented by this case is whether the employee’s PTSD diagnosis entitles him to ongoing benefits even if his condition improved and he no longer met all DSM criteria.  The majority, with its narrow interpretation of the PTSD provisions contained in Minn. Stat. § 176.011, subds. 15 and 16, has answered that question in the negative.  In my opinion, this holding is problematic and unworkable, and I therefore respectfully dissent.

Minn. Stat. § 176.011, subds. 15 and 16, must be read in conjunction with the historical context of how the Workers’ Compensation Act (WCA) and case law have been applied to mental health injuries.  Minnesota’s first workers’ compensation law limited compensable injuries to personal injury or death of an employee caused by “accident,” which was defined to include only “injury to the physical structure of the body,” provided that the employee “was not willfully negligent.”  See Minn. Stat. §§ 8195, 8230(h) (1913) (emphasis added).  The statute remained mostly unchanged until a comprehensive revision was enacted in 1953.  The new statute eliminated this definition and employers are now liable for compensation “in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence.”  Minn. Stat. § 176.021, subd. 1.

The next year, the Minnesota Supreme Court recognized that a physical stimulus resulting in a mental injury, or physical/mental injury, could be compensable.  Hartman v. Cold Spring Granite Co., 243 Minn. 264, 67 N.W.2d 656, 18 W.C.D. 206 (1954).  In 1979, a mental stimulus resulting in a physical injury, or mental/physical injury, was recognized as compensable.  Aker v. State, Dep’t of Nat. Res., 282 N.W.2d 533, 32 W.C.D. 50 (Minn. 1979).  The next step in the progression of the law was presented to the Minnesota Supreme Court in the Lockwood case, where the court considered the compensability of a mental stimulus resulting in a mental injury, or a mental/mental injury.  The court held that the 1953 statutory revisions indicated no discernable intent that mental/mental injuries should be compensable and considered the issue of compensability of such injuries to be a policy determination best left to the legislature.  Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981).  After Lockwood, the law remained that mental/mental injuries were not compensable in Minnesota.

In 2013, the Minnesota legislature amended the WCA to allow compensability for one specific type of mental/mental injury, PTSD.  The language of the amendment is very limited and requires that the PTSD diagnosis be made by a licensed psychologist or psychiatrist using the criteria in the latest version of the DSM, currently DSM-V.  See 2013 Minn. Laws, ch. 70, art. 2, § 1 (amending Minn. Stat. § 176.011, subd. 15); 2013 Minn. Laws, ch. 70, art. 2, § 2 (amending Minn. Stat. § 176.011, subd. 16).  An employee diagnosed with PTSD pursuant to the current DSM by a licensed psychiatrist or psychologist may assert a claim for a mental/mental injury, which is the only exception to the Lockwood doctrine.

While this court and the supreme court have considered issues raised by the application of the PTSD provision under Minn. Stat. § 176.011, subds. 15 and 16, prior to this case, the issue presented here is one of first impression.  The employee had been diagnosed with PTSD and was entitled to benefits.  However, at the time of the hearing, he no longer met all DSM diagnostic criteria for PTSD.  Under the majority’s opinion, the employee is not entitled to ongoing benefits despite having established liability for a work injury in the nature of PTSD.  I disagree.

An employee whose condition improves and who no longer meets the diagnostic criteria for PTSD is put in a precarious position under the majority’s holding in this case.  While the employee may no longer meet all criteria for PTSD, it is likely that the employee would continue to require mental health treatment, work restrictions, and vocational assistance.^[8]  This is true for the employee in this case.  Despite having established a compensable injury, he is being denied ongoing workers’ compensation benefits not because his injury resolved, but because it evolved.^[9]  I cannot agree that the legislature intended to throw such injured employees a lifeline to get them partway to shore before cutting the lifeline and hoping the employee could swim the rest of the way.

And what of the employee whose condition improves and who no longer meets the diagnostic criteria for PTSD, but whose condition later worsens, and again meets the criteria?^[10]  For such employees, there are two possibilities under the majority opinion.  The first possibility is that such an employee is precluded from workers’ compensation benefits for that established work injury.  I find it unlikely that the legislature intended to allow employees benefits for PTSD during the initial period of the diagnosis, but to deny employees benefits for any subsequent periods.  The second possibility is that such an employee could file a new claim for a new period of benefits each time the condition worsened to become PTSD again.  If that is the case, every time an employee was later diagnosed with PTSD, another round of litigation would follow, requiring the employee to undergo repeated and frequent PTSD evaluations from treating physicians and independent examiners to prove compensability of each medical visit or period of wage loss.^[11]  The cost of expert testimony, litigation, and judicial resources this would require is untenable.

In addition, during the periods when the employee did not meet the criteria for a PTSD diagnosis, the employee would need to seek payment for treatment and wage loss replacement from other sources.  The employee could be subjected to endless cycles of litigation, likely overlapping each other, while also regularly applying and re-applying for alternative benefits.  Providers would be required to determine on each date of service whether an employee’s diagnosis was PTSD, potentially requiring a CAPS interview at each visit, to make sure there was proper billing to the right health insurer.  There could be similar confusion over which wage replacement provider had to pay on a given day.  This situation would result in delayed payments to the injured worker and a lack of certainty for all parties which are contrary to policies fundamental to the WCA.

The majority’s conclusion that the employee does not have an ongoing compensable claim also creates issues regarding compensability of permanent partial disability (PPD) benefits.  In this case, the majority holds that the employee is not entitled to payment for PPD because the employee no longer met the PTSD criteria at the time the rating was provided.  He had been diagnosed with the condition, but the timing of the PPD opinion and litigation affected his eligibility.  So, whether an employee who has been diagnosed with PTSD is eligible for PPD benefits depends upon the date of the permanency opinion and the date of the hearing rather than on a determination of whether the employee has a permanent work-related injury related to his or her compensable mental health injury.

Finally, the holding in this case may have the unintended consequence of discouraging an employee who has PTSD from seeking treatment to improve his or her condition.  An injured worker who is suffering from PTSD and who is receiving benefits, but is told that any improvement affecting the diagnostic criteria could result in the injury being non-compensable, may choose to forego treatment so as to continue receiving benefits.  As a policy matter, the WCA should encourage treatment for PTSD and its constellation of symptoms, particularly for the well-being of public safety officers such as Mr. Chrz, as well as their families and the public they serve and protect.

For these reasons, it is my opinion that the majority’s interpretation of the PTSD provision is flawed.  I would hold that once an employee has established a compensable PTSD injury, any subsequent mental health condition, if caused by or consequential to the PTSD diagnosis, is also compensable.  See Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961) (establishing consequential injuries as compensable); see also Wallace v. Judd Brown Constr. Co., 269 Minn. 455, 131 N.W.2d 540, 23 W.C.D. 362 (1964).  The legislature amended the WCA to include PTSD in its definition of an occupational disease.  Holding that conditions which flow from a compensable occupational disease is consistent with the statute and with case law.  See, e.g., Radermecher v. FMC Corp., 375 N.W.2d 809, 812, 38 W.C.D. 195, 199 (Minn. 1985) (cancer which arose from the medical treatment for an occupational disease, was itself a compensable medical condition as an incident of the occupational disease).

The employee has established primary liability for his PTSD injury.  Any mental health condition that he suffered at the time of the hearing and which flows from his PTSD injury must also be compensable.  While no evidence was offered to explicitly assert that the employee’s post-PTSD condition is consequential to his PTSD, there is evidence in the record sufficient to show that the employee’s post-PTSD diagnosis is still an ongoing manifestation, regardless of label, of the same work-related mental health injury.  Dr. Slavik continued to support a causal link between the employee’s mental health condition and his work exposure as she opined that only the diagnostic label had evolved.  I would therefore affirm the compensation judge’s award of benefits to the employee.