STATUTES CONSTRUED – MINN. STAT. § 176.011, SUBD. 15; EVIDENCE – EXPERT MEDICAL OPINION. Where the compensation judge was presented with competing well-founded opinions with regard to a PTSD diagnosis under the DSM, this court must affirm in light of Smith v. Carver Cnty., 931 N.W.2d 390 (Minn. 2019).
PRACTICE AND PROCEDURE – MATTERS AT ISSUE. When the consequential major depressive disorder was not raised as an issue at hearing, the compensation judge erred in finding that it was a compensable work-related injury and that award is vacated.
Compensation Judge: Adam S. Wolkoff
Attorneys: David B. Kempston, Mottaz & Sisk Injury Law, Coon Rapids, Minnesota, for the Respondent. Andrew M. Grimsrud, Aafedt, Forde, Gray, Monson & Hager, P.A, Minneapolis, Minnesota, for the Appellant.
Affirmed in part and vacated in part.
PATRICIA J. MILUN, Chief Judge
The self-insured employer appeals from the compensation judge’s finding that the employee sustained work-related post-traumatic stress disorder and major depressive disorder. We affirm in part, and vacate in part, the Findings and Order of the compensation judge consistent with this opinion.
The employee, Janine Tea, is a licensed social worker. She had been employed by the self-insured employer, Ramsey County, as an adult mental health case manager since 2014.
The employee has a medical history of depression, anxiety, and attention-deficit hyperactivity disorder. Through February 2020, these conditions were stable and managed with standard treatment and did not materially affect the employee’s ability to function or perform her work duties.[1]
On February 26, 2020, one of the employee’s clients murdered his girlfriend. The employee learned of the murder the next day over the telephone. For the remainder of that day, and for several days that followed, the employee spent considerable time at work in conversations and meetings describing the graphic details of the murder. These activities were within the scope of her work duties.[2] She also began following news stories and collecting information from the internet on the matter, all of which were beyond her work duties.[3] During the same period, she began to experience trouble sleeping and nightmares as a manifestation of the incident.[4]
The employee filed a first report of injury on March 3, 2020, claiming work-related secondary trauma related to a violent act committed by her client.
The employee sought psychotherapy treatment and underwent a psychiatric evaluation with Robert Finn, APRN, DNP, of HealthPartners on March 6, 2020.[5] At a February 21, 2021, visit, Dr. Finn diagnosed the employee with post-traumatic stress disorder (PTSD), based on his opinion that the employee met the criteria set forth in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).[6] Until late 2020, the employee underwent regular therapy sessions with Richard Burns, MS, LMFT, of CenterLife Counseling. On December 28, 2020, she underwent a psychotherapy diagnostic assessment by Jon Butala, MA, LMFT, at HealthPartners. Mr. Butala diagnosed the employee with major depressive disorder and anxiety.
The employee began psychotherapy with a new therapist, Samantha Colai, MA, LMFT, RPT-S, SEP, in early 2021. The employee treated with Ms. Colai on a regular basis for more than a year.[7] Like Dr. Finn, Ms. Colai was of the opinion that the employee suffered from PTSD as a result of the murder committed by her client.[8]
In June 2021, the self-insured employer requested the employee to undergo a psychological fitness-for-duty evaluation with licensed psychologist, John Hung, Ph.D., at Health Psychology Consultants. After the evaluation, Dr. Hung was of the opinion that the employee suffered from severe major depressive disorder and PTSD. Dr. Hung found the employee unable to perform the work duties of a mental health case manager because of these disorders.
The self-insured employer initially accepted primary liability and made payment of benefits. At the request of the self-insured employer, the employee was seen for a psychiatric evaluation by licensed psychiatrist, Thomas Gratzer, MD. Dr. Gratzer interviewed the employee and issued his report on January 12, 2022. In Dr. Gratzer’s report, he opined, in part, that the employee did not meet the diagnostic criteria for PTSD under the DSM-5. Based upon his opinion, the self-insured employer discontinued workers’ compensation benefits.
On May 10, 2022, the employee underwent an independent psychological evaluation with licensed psychologist, Michael Keller, Ph.D. Dr. Keller reviewed medical records, took a history from the employee, and administered psychological tests. In his report of May 24, 2022, Dr. Keller opined that the employee met the DSM-5 criteria for PTSD as a result of her repeated exposure to the details of the murder, and also diagnosed the employee with major depressive and anxiety disorders. Notably, he explained that Criteria A4 was met when the employee initially learned of the murder, with subsequent repeated exposure to aversive details of the event for the next several days immediately following the event occurrence. Dr. Keller also referenced Dr. Hung’s opinion that the traumatic experience for the employee was not simply one incident of being informed of the murder, but likely included her heavy and repeated exposure to information about the murder in the several days that followed.[9]
The employee’s claims came on for hearing before a compensation judge at the Office of Administrative Hearings. At issue was primary liability, the nature and extent of the employee’s condition, and her entitlement to various benefits. The compensation judge issued a Findings and Order dated October 20, 2022, wherein he found that the employee sustained a work-related psychological injury in the nature of PTSD and major depressive disorder beginning on February 27, 2020. The self-insured 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).
The self-insured employer appeals from the compensation judge’s finding that the employee sustained PTSD and major depressive disorder as a result of her work for Ramsey County beginning on February 27, 2020. We affirm in part and vacate in part.
As of October 1, 2013, the Workers Compensation Act recognizes PTSD, standing alone, as a compensable injury under the occupational disease section of the statute.[10] Cases invoking the PTSD presumption notwithstanding,[11] an employee has the burden to prove the elements of a work-related PTSD claim.
In this case, the employee worked as a social worker in the adult mental health care unit for Ramsey County. On February 27, 2020, the employee had indirect exposure to a traumatic event that multiple medical providers believed caused secondhand trauma and PTSD by proxy.[12] The employee was diagnosed with PTSD by Dr. John Hung and Dr. Michael Keller, two licensed psychologists. Dr. Hung assessed and examined the employee in June 2021 for a fitness-for-duty evaluation. In his report dated June 17, 2021, Dr. Hung opined that the employee had PTSD and was psychologically unable to perform her work duties. His report lists the employee’s symptoms but provides no analysis or mention of the DSM or its PTSD criteria. Dr. Keller performed an independent psychological examination of the employee on May 10, 2022, and issued a report dated May 24, 2022. In that report, Dr. Keller diagnosed the employee with PTSD according to his application of the criteria contained in the DSM-5. Prior to Dr. Keller’s examination and diagnosis, in March 2022, the American Psychiatric Association published the DSM-5-TR.[13]
Contrary to those opinions, licensed psychiatrist, Dr. Thomas Gratzer, found the employee did not suffer from work-related PTSD, and was of the opinion that the employee did not meet the full DSM-5 criteria for PTSD as outlined in his January 2022 report.
From the record it appears that expert medical providers did not use the most recent published edition of the Diagnostic and Statistical Manual of Mental Disorders: DSM5-TR as required by Minn. Stat. § 176.011, subd. 15. See Smith v. Carver Cnty., 931 N.W.2d 390 (Minn. 2019). However, no party raised an issue regarding the effect of the failure by medical experts to use the most recently published edition of the Diagnosis and Statistical Manual of Mental Disorders when providing an expert opinion relied upon by the compensation judge, or the absence of citing any edition of the DSM used in forming expert opinions relied upon by the judge. Issues not raised by the parties at the hearing nor introduced in their briefs on appeal are forfeited and cannot be considered by this court. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 801, (Minn. 2017).
On appeal, the self-insured employer argues that the compensation judge’s adoption of Dr. Keller’s opinion was clearly erroneous and not supported by substantial evidence. The arguments presented by the self-insured employer with regard to how and whether the undisputed facts fit within the language of DSM criterion A and C are compelling. However, this court cannot consider the merits of those arguments because we have been foreclosed from doing so by the supreme court’s decision in Smith. In Smith, this court had remanded the case to the compensation judge for an assessment of whether an expert opinion conformed with the DSM, and the supreme court reversed, stating:
The WCCA’s opinion would require the compensation judge to go far beyond determining whether the medical professional had an adequate foundation for diagnosing a worker with (or without) PTSD under the DSM-5. Instead, under the WCCA’s approach, the compensation judge must lay each expert’s report on the desk next to the DSM-5 and assess whether the medical professional’s opinion conformed with the precise wording of the DSM-5 as the compensation judge interprets those words. … Nothing … even remotely suggests that such an exercise is required.
Smith, 931 N.W.2d at 397.
Following Smith, this court cannot require that the compensation judge assess whether Dr. Keller’s opinion conforms to the language of the DSM. Instead, we must affirm the compensation judge’s choice between two competing well-founded opinions with regard to a PTSD diagnosis under the DSM. Therefore, our analysis is as follows.
In an unappealed finding, the compensation judge found the employee to be credible. At Finding 42, the compensation judge found that “[t]he opinions of Dr. Keller, Dr. Hung, and the employee’s treating providers Dr. Finn, and Ms. Colai are accepted as credible.” At Finding 43, the compensation judge found, in part, that the employee sustained PTSD “as diagnosed by Dr. Keller and Dr. Hung.” Based upon substantial evidence in the record, we affirm the compensation judge’s finding that the employee sustained work-related PTSD.[14]
The self-insured employer seeks reversal of the compensation judge’s finding that the employee sustained a work-related injury in the nature of major depressive disorder, arguing that major depressive disorder is not a compensable injury and that the condition was not pled.
Under Minnesota workers’ compensation law, a major depression injury, standing alone, is not compensable.[15] Major depressive disorders may be compensable if consequential to PTSD compensable under Minn. Stat. § 176.011. See also Chrz, 986 N.W.2d at 486, n. 2.
Here, a work-related major depression injury claim was not pled as a consequential injury. Because a direct claim for a major depression injury is not compensable, and because there is no evidence in the record that a claim for an injury consequential to the employee’s PTSD was brought before the compensation judge, we vacate Finding 43 as it relates to major depressive disorder.[16]
DEBORAH K. SUNDQUIST, Judge (concurring).
I concur with the majority opinion. I write this concurrence to offer additional insight into what the fact finders are asked to do in a workers’ compensation setting. By its nature, workers’ compensation law is a hybrid of medical facts and legal analysis. Judges review the rules and apply them to the medical facts in each case. As an example, permanent partial disability (PPD) schedules require medical elements be met to assess the correct PPD rating. See Minn. R. Chapter 5223. This means that a judge must weigh multiple doctors’ opinions and often will arrive at their own assessment based by laying “each expert’s report on the desk” next to the PPD schedules and assessing “whether the medical professional’s opinion conformed to the precise wording” of the PPD rules. Therefore, it is not a stretch to ask a judge to review the DSM in PTSD cases if that means a more just result. Here, the judge compared the analyses of the DSM criteria in the medical experts’ opinions to reach a decision--one that was supported by substantial evidence which we affirm.
SEAN M. QUINN, Judge (concurring).
I concur with the majority opinion as it declines to consider the merits of the self-insured employer’s arguments with regard to whether Dr. Keller’s opinion conforms to the DSM given the constraints of the Smith decision,[C-1] and as it affirms the compensation judge’s choice of expert opinion. I join the concurring opinion of Judge Sundquist. I write separately to highlight the challenges presented by Smith in cases such as this one.
Beyond limiting this court’s review, I believe Smith goes further and also limits a compensation judge from assessing whether an expert opinion conforms with the DSM. The Smith decision stated that a compensation judge, when presented with well-founded[C-2] but contradictory opinions with respect to a PTSD diagnosis, must decide which is more credible and persuasive. In making that choice, a compensation judge cannot substitute his or her “legalistic analysis of the DSM-5 for the professional judgment of psychiatrists and psychologists.” Id. at 397. As the Smith court noted, “the DSM is a guideline for medical and health professionals, not a checklist for judges.” Id. at 397-98.
How, then, does the compensation judge in this case choose between opinions such as that of Dr. Keller versus Dr. Gratzer without consideration of whether the opinions conform with the DSM? The opinions are equal other than the application of the facts to the DSM criteria. Limited by Smith, the compensation judge was asked to choose between these two opinions without looking at the DSM. The compensation judge adopted Dr. Keller’s opinion and rejected Dr. Gratzer’s opinion for reasons that seem to be a distinction without a difference.[C-3] Also limited by Smith, this court on appeal may not look to the DSM in assessing whether the chosen expert opinion conformed with the DSM and thus with the statute. I do not believe this was the resulting analysis intended by the Smith decision.
[1] Exs. 4 and 5; T. at 66, 74-75, 80-81.
[2] Ex. F(1); T. 94-95, 160-61.
[3] Exs. F(2) and F(6); T. 102, 160-61, 165-66.
[4] Exs. F(2) and F(6); T. at 100.
[5] Ex. F(6).
[6] Id.; See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).
[7] Ex. F(3).
[8] Id.
[9] Ex. F(1).
[10] Minn. Stat. § 176.011, subds. 15 and 16.
[11] Minn. Stat. § 176.011, subd. 15(e).
[12] Exs. F(1), F(2), F(3), and F(4).
[13] Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. text revision 2022).
[14] The court agrees with the positions taken in both concurrences that compensation judges could use further guidance in applying the supreme court’s ruling in Smith v. Carver Cnty., 931 N.W.2d 390 (Minn. 2019).
[15] Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924 (Minn. 1981); see also Chrz v. Mower Cnty., 986 N.W.2d 481, 485 (Minn. 2023).
[16] This decision does not foreclose a claim for compensation for a work-related major depression injury if properly pled and consistent with the law on psychological injuries.
[C-1] Smith v. Carver Cnty., 931 N.W.2d 390 (Minn. 2019).
[C-2] The self-insured employer made no foundation objection to Dr. Keller’s report. In Smith, the court noted that compensation judges must continue to review expert reports to evaluate the credibility, factual foundation, and other aspects relevant to the assessment in making a choice of expert opinion. Id. at 398, n. 4. Had the issue of whether Dr. Keller accurately applied the facts to Criterion A been couched as a factual foundational argument before the compensation judge, the compensation judge may have been able to more fully consider the issue, which this court could then meaningfully review on appeal. It does not appear, however, that Smith was decided based on the failure of the parties to raise foundational objections, so it is not clear that a foundation objection in this case would have made a difference.
[C-3] The compensation judge found that because Dr. Gratzer did not specifically state that the employee did not suffer a Criterion A4 traumatic event and only stated she did not suffer a Criterion A event, his opinion was not persuasive. As argued by the self-insured employer, Criterion A encompasses all subparts, and so it seems Dr. Gratzer, when opining that there was no Criterion A event, necessarily meant all of Criterion A, including A4.