CYNTHIA GOERNDT, Employee/Respondent, v. FAM. HEALTHSERVICES MINN., P.A., and MASS. BAY – HANOVER INS. GRP., Employer-Insurer/Appellants, and, ALLINA MED. CLINIC, UNITED HOSP., O’HARA & HUNTER CONSULTING, HEALTHPARTNERS, INC., FAIRVIEW HEALTH SERVS. – ALL ENTITIES, PRAXIS o/b/o LINCOLN FIN. GRP., BLUE CROSS BLUE SHIELD OF MN, and KATHY TUFF, Intervenors.

WORKERS’ COMPENSATION COURT OF APPEALS 
AUGUST 27, 2024
No. WC24-6555

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  Substantial evidence, including well-founded medical expert opinion, supports the compensation judge’s finding that the employee continues to suffer from long COVID-19 symptoms and an aggravation of her pre-existing psychological conditions arising from her COVID-19 infection which arose out of and in the course of her employment.

    Determined by:
  1. Sean M. Quinn Judge
  2. Patricia J. Milun, Chief Judge
  3. Kathryn H. Carlson, Judge

Compensation Judge:  Stephen R. Daly

Attorneys:  Nadya Yarmolich and Eric Schwab, Meuser, Yackley & Rowland, P.A., Eagan, Minnesota, for the Respondent.  Kyle T. Kustermann, Erstad & Reimer, P.A., Minneapolis, Minnesota, for the Appellants.

Affirmed.

OPINION

SEAN M. QUINN, Judge

The employer and insurer appeal from a compensation judge’s findings and order determining that the employee continues to experience symptoms as a result of her work-related COVID-19 occupational disease, and that such disease remains a substantial contributing factor aggravating her pre-existing psychological conditions.  We affirm.

BACKGROUND

The employee, Cynthia Goerndt, was born in 1961 and has had a long history of significant traumas, which have impacted her physical and mental health throughout most of her life.  She has been diagnosed with major depressive disorder, post-traumatic stress disorder (PTSD), generalized anxiety disorder, social phobia, binge eating disorder, and drug and alcohol abuse at various times.  Her symptoms and medical treatments have been numerous and extensive, including several hospitalizations.

Despite these significant challenges, the employee was able to attend school.  She obtained a nursing assistant certificate, a bachelor’s degree in psychology, a bachelor’s degree in nursing, and eventually became a registered nurse in 2003.  The employee worked as a nurse for other employers before she began working for Family Healthservices of Minnesota, the employer, as a full-time registered nurse in 2014.  The employee performed a variety of medical-related work duties and she also worked directly with patients, served on several committees, developed protocols, and oversaw patient education.

In 2016, the employee began treatment at Water’s Edge Counseling and Healing Center for her ongoing mental health conditions.  The employee’s primary care physician is Dr. Christine Schmitz of Allina Clinic.  Dr. Schmitz also cared for the employee’s mental health conditions with treatment including therapies, interventions, and medications.

In late 2020, the employee was working as a care manager ensuring communication was properly coordinated among doctors, patients, and different clinics within the employer’s network.  On December 31, 2020, the employee was diagnosed with COVID-19 after a work-related exposure.[1]  Her symptoms included fatigue, coughing, fever, body aches, and shortness of breath.  She was taken off work due to her diagnosis and symptoms.

Over the next two months, the employee continued to suffer from ongoing shortness of breath and coughing.  She was prescribed a nebulizer, an inhaler, and other medications.  By early March 2021, the employee showed normal lung function and her chest CT scans showed no findings, yet her symptoms, including shortness of breath and developing brain fog, persisted.

The employee attempted to return to work on March 3, 2021, but was unsuccessful due to ongoing fatigue, coughing, and brain fog symptoms.  She was also experiencing forgetfulness as well as difficulty concentrating and recalling words in her role as a nurse.  Dr. Schmitz took the employee off work again beginning on March 11, 2021, and recommended continued use of nebulizers to deal with her ongoing shortness of breath.  Dr. Schmitz indicated that the employee had ongoing symptoms of post-COVID-19, including brain fog, severe fatigue, difficulty concentrating, and shortness of breath.  (Ex. U.)

The employee claimed loss of time due to her COVID-19 diagnosis beginning March 11, 2021.  The employer and insurer admitted primary liability and began paying her temporary total disability (TTD) benefits.

The employee continued treating with Dr. Schmitz and was also seen by lung and neurological specialists.  She continued the use of inhalers, nebulizers, and medications, but her symptoms persisted.  Dr. Schmitz noted at a July 23, 2021, appointment that the employee was unable to walk up a flight of stairs or around a city block without becoming short of breath.  (Ex. U at 1561-62.)  She complained of headaches, tachycardia, muscle pain, and cognitive issues, but heart and brain MRI exams provided no explanation for her ongoing symptoms.  The employee struggled to drive a car or multitask and would forget chores that she had done for years, such as how to follow a recipe when cooking.  (Id.)  During her recertification for her nursing license she required one-on-one assistance due to her ongoing symptoms.  (Ex. I.)

In light of her ongoing cognitive issues and at the recommendation of Dr. Schmitz, the employee underwent a neuropsychological evaluation[2] on July 26, 2021, by Dr. Jackie Micklewright, a licensed psychologist and board-certified clinical neuropsychologist, at Courage Kenny Rehabilitation.  The employee was found to be cooperative but distracted and used “a considerable amount of her energy to regulate her emotions and her reaction to her perception that she was doing poorly on the testing.”  (Ex. U at 1546.)  The employee’s test performance was “below chance levels on a measure of objective effort,” and the testing was discontinued as the results were “clearly an underestimate of her abilities.”  (Id.)  Nevertheless, Dr. Micklewright did not find the employee to be malingering.[3]  Rather, Dr. Micklewright wrote in her report:

Although her mood symptoms are longstanding and predate her COVID-19 infection, it is clear that she has psychiatrically decompensated and experienced a significant exacerbation of her mood symptoms as a result of the infection and subsequent symptoms.

(Id.)

The employee was examined by Dr. Farha Ikramuddin, a physical medicine and rehabilitation physician at M Health Fairview on July 28, 2021, with complaints of post-COVID-19 syndrome.  The employee’s primary symptoms were fatigue, brain fog, cough, and mental health issues.  Dr. Ikramuddin recommended exercise and aggressive mental health therapy.  He also recommended that the employee complete neuropsychological testing because Dr. Micklewright had previously discontinued the first round of tests during her examination.

On August 5, 2021, the employee underwent a psychiatric evaluation with Dr. Fei Zhang of Allina Clinic.  During the interview, the employee discussed her past mental health history and traumas.  Dr. Zhang diagnosed the employee with a history of PTSD, binge eating disorder, and insomnia.  In her assessment, Dr. Zhang stated that prior to her work-related diagnosis, the employee was able to seek treatment and work toward mental stability for several years.  Dr. Zhang concluded that the employee’s symptoms, including fatigue and the inability to work or socialize, were exacerbated after contracting COVID-19.  (Ex. U at 1530.)  Following the evaluation, the employee began a course of regular care with Dr. Zhang for mental health treatment.

In October 2021, Dr. Zhang diagnosed the employee as a “COVID-19 long hauler,” and opined that the viral infection, coupled with the employee’s pre-existing mental health conditions, made improvement a challenge.  (Ex. U at 1478.)  The employee remained off work due to her continued symptoms.

In December 2021, the employee began occupational therapy at Courage Kenny Rehabilitation.  In March 2022, she began a course of psychotherapy at Lyn-Lake Psychotherapy and Wellness on the recommendations of Dr. Schmitz and Dr. Zhang.  Throughout the remainder of 2022, the employee continued both occupational rehabilitation and psychotherapy sessions.

At the request of the employer and insurer, the employee underwent a psychiatric examination by Dr. Scott Yarosh on October 12, 2021, who issued his report on January 10, 2022.  Dr. Yarosh reviewed past medical records, took a history from the employee, and had a Minnesota Multiphasic Personality Inventory (MMPI-3) test of the employee administered by a separate psychologist.  The results of the blind interpretation of the MMPI-3 suggested moderate to severe depression and anxiety, significant PTSD symptoms, hopelessness and suicidal thoughts, and a preoccupation with her physical health.  Dr. Yarosh opined:

[The employee] has had a lengthy, complex, and recurrent history of mental health issues since she was a teenager.  Although COVID-19 is thought to produce some psychological symptoms including depression and brain fog, in this case, it is very challenging to parse out which of her ongoing and recurrent psychiatric symptoms are due to the virus and which are merely waxing and waning of her longstanding history of numerous mental health conditions.

***

Given that COVID-19 is a new disease and there are significant reports of mental health issues associated with it, it is not unreasonable to consider a component of [the employee’s] mental health issue is resulting from COVID-19.  However, the severity and length of her symptoms are of concern and likely result from her underlying, relatively immutable emotional coping mechanisms more than they do from the virus itself.

(Ex. 1.)  Dr. Yarosh concluded that the employee’s COVID-19 occupational disease temporarily exacerbated the employee’s pre-existing mental health conditions, but resolved by the October 12, 2021, examination.  He explained that brain fog and other mental health exacerbations typically resolve within four to six months of a COVID-19 exposure.  He further opined that the employee’s prognosis was “poor” due to her longstanding mental health issues and that “[s]he appears content for things to stay the way they are so long as she does not have to return to work.”  (Id.)

On June 20, 2022, Dr. Schmitz wrote a narrative letter on behalf of the employee.  She detailed that during the employee’s treatment between 2016 to 2019, the employee’s initial condition was severe with uncontrolled mood symptoms, severe migraines, and an uncontrolled eating disorder to the point that the employee was placed on probation at work for missing too much time.  Dr. Schmitz recounted the employee’s efforts to improve by seeking regular care, including therapy.  Office visits with Dr. Schmitz improved from frequent, to every three to four months, and finally to annual check-ups.  However, after the employee contracted COVID-19, Dr. Schmitz noted significant physical symptomology including shortness of breath, cough, and fatigue.  After the respiratory symptoms improved, ongoing brain fog remained.  The employee’s 2021 return-to-work attempt failed because the employee was unable to keep up with the basic functions of her job due to her ongoing symptoms.  Dr. Schmitz opined that the employee’s work-related COVID-19 occupational disease “played a significant role” in the employee’s current condition, stating, “[c]onsidering that she was able to do her job, work regularly and retain information prior to her COVID-19 diagnosis, and was unable to do any of those things after her covid diagnosis it is clear to me that COVID-19 was the cause of her severe and persistent decline in function both in her work and at home.”  (Ex. I.)  Dr. Schmitz continued that the employee’s symptoms were consistent with long COVID-19 and further stated that:

The medical literature and case reports certainly also support that COVID can worsen baseline mental health issues.  . . .  It is my medical opinion that [the employee] was stable from a mental health perspective without issues of brain fog, extreme fatigue and shortness of breath prior to COVID.  After her COVID diagnosis she has had persistent symptoms of brain fog, extreme fatigue and shortness of breath as well as worsening of her mental health symptoms.  This is consistent with long COVID as the result of her work-related injury of developing COVID in December of 2020.

(Id.)  Dr. Schmitz disagreed with Dr. Yarosh’s opinion, explaining that if the worsening of the employee’s mental health condition was only temporary, then the employee would have returned to her pre-COVID-19 diagnosis baseline functioning.

On June 21, 2022, Dr. Nicole Slavik issued a report after examining the employee at the request of the employee’s attorney.  Dr. Slavik reviewed the employee’s medical records, including the report of Dr. Yarosh, performed a clinical interview of the employee, and administered various psychological tests.  In her report, Dr. Slavik concluded that the employee suffered from PTSD, persistent depressive disorder with intermittent major depressive episodes including a severe current episode, generalized anxiety disorder, and eating disorders.  She opined that the employee’s COVID-19 occupational disease was a substantial contributing factor to her current mental health condition.  Dr. Slavik explained that the employee’s condition was significantly exacerbated because of her COVID-19 exposure, that it continued to impair her daily functioning, and that the employee had yet to return to her pre-diagnosis stability.  She also opined that it was premature to determine whether the exacerbation was permanent or whether the employee has reached maximum medical improvement.  Finally, Dr. Slavik recommended that the employee remain off work, continue with her mental health therapies, and that additional therapies might be considered following discussions with her providers.  (Ex. C.)

The employee was referred to Dr. Douglas Whiteside at M Health Fairview for neuropsychological testing.  Dr. Whiteside was provided the employee’s medical history, including the prior evaluation conducted by Dr. Micklewright.  Dr. Whiteside conducted clinical examinations on July 11 and 13, 2022.  The cognitive function testing showed results “below expected limits and at times below chance level performance” and therefore Dr. Whiteside was unable to assess the employee’s cognitive functioning.  (Ex. V at 1076.)  The objective emotional test results were valid, however, and Dr. Whiteside concluded that the employee suffered from significant depressive and anxiety symptoms and met the diagnostic criteria for moderate to severe major depressive disorder.  He opined that the depression and sleep deprivation were likely significantly impacting the employee’s functioning.  He recommended continued psychotherapeutic intervention, continued psychiatric consultation, and addressing the employee’s sleep difficulties.

The employee returned to Dr. Ikramuddin on August 10, 2022, continuing to complain of ongoing fatigue and brain fog which were impacted by the employee’s significant mental health history.  Dr. Ikramuddin recommended ongoing mental health treatment and a return visit in three months.

In 2023, the employee continued treating with Dr. Zhang for ongoing long COVID‑19, depression, PTSD, anxiety, and an eating disorder.  She also continued to treat with Dr. Schmitz for shortness of breath and cognitive impairment symptoms.  A January 13, 2023, functional capacity evaluation concluded that the employee could not work due to the combination of her shortness of breath, difficulty multitasking, and poor concentration and memory.

The employee was re-examined by Dr. Ikramuddin on February 1, 2023.  The employee had significant balance issues, ongoing depressive symptoms, cognitive deficits, slow speech, and slow cognitive processing.  Dr. Ikramuddin referred the employee to speech pathology and physical therapy.  She stated, “[a]t present [the employee’s] symptoms of lethargy, cognitive deficits are consistent with other diagnoses including bipolar depression, rather than long COVID syndrome.”  (Ex. V at 1062.)

On March 1, 2023, Dr. Schmitz noted that despite the employee’s long history of mental health diagnoses, she was able to function at work and seek care as needed prior to her COVID-19 diagnosis.  Since contracting COVID-19, however, Dr. Schmitz stated that the employee has had a severe decline in cognitive functioning and a worsening of her pre-existing psychiatric symptoms.  She continued to keep the employee off work.  Dr. Schmitz noted no change in the employee’s condition during an April 28, 2023, visit.

Dr. Zhang wrote a narrative letter on July 3, 2023.  She recounted that the employee had been her patient for the past two years and that she was aware of the employee’s lengthy mental health diagnoses.  Dr. Zhang explained that despite the employee’s psychiatric history, she was able to retain her job and perform her nursing duties until her COVID-19 infection.  She further explained that following her infection, the employee was unable to return to her work duties despite attempts.  Dr. Zhang concluded that:

Unfortunately, even as quickly as we have been able to learn about [COVID] and all that we have done as a medical society to prevent, diagnose, and treat it, the care for Long COVID is still very much in its infancy.  I am not arguing the presence of ambiguity in this case for other confounding factors.  However, despite our lack of ability to make a definitive diagnosis, I do believe we have more than sufficient supporting evidence to make the clinical judgement based on [the employee’s] timeline and clinical presentation, which in my medical opinion, is Long COVID.

(Ex. N; Ex. 51.)

On July 6, 2023, Dr. Yarosh re-evaluated the employee at the employer and insurer’s request.  Dr. Yarosh was provided additional past medical records to review as part of his examination as well as updated medical records and reports.  His report, issued July 26, 2023, reflects that his opinions remained unchanged from his earlier January 2022 report.

On August 17, 2023, Dr. Zhang wrote a second letter regarding her opinion of Dr. Yarosh’s July 6, 2023, report.  Her opinions were unchanged and further explained that the employee’s symptoms had undergone a “major shift” since her COVID-19 infection, and were not, as Dr. Yarosh opined, just part of the fluctuations of her long-term history of mental disorders.  (Ex. L.)

Dr. Slavik examined the employee for a second time on July 25, 2023, at the request of the employee’s attorney.  In the August 18, 2023, report, Dr. Slavik’s opinions remained mostly unchanged from her initial report.  However, she opined that the employee had reached MMI and that the employee’s condition was now permanent.  She further opined that the employee had a 20 percent permanent partial disability (PPD) rating because of the exacerbation under Minn. R. 5223.0360, subp. 7(D)(2).  Dr. Slavik also offered some additional treatment modality recommendations.  (Ex. A.)

Dr. Schmitz authored a second letter on August 20, 2023, at the request of the employee’s attorney.  Dr. Schmitz disagreed with Dr. Yarosh’s July 6, 2023, report stating that the conclusions of Dr. Yarosh were unsupported and even contradicted by medical literature from the Centers for Disease Control and Prevention.  Dr. Schmitz explained that by definition long COVID‑19 does not resolve in short order, as opined by Dr. Yarosh, rather ongoing symptomatology continues for specific patients.  She also opined that, based on her experience as a doctor and her years of treating the employee both before and after the COVID-19 infection, the employee was, despite her mental health issues, able to function and even improve her functioning before the infection, and is in acute decline and less functional than at any point in their doctor-patient relationship.  (Ex. G.)

The employee returned to Dr. Schmitz in August and November 2023.  At that time, her symptoms were stable, but remained significantly impairing.  Dr. Schmitz kept the employee restricted from work.

The employee filed a claim petition seeking various workers’ compensation benefits in July 2021.  The employer and insurer filed a notice of intent to discontinue (NOID) TTD benefits.  After prevailing at an administrative conference, they stopped paying TTD benefits to the employee on January 10, 2022.  The employee requested a formal hearing on her claims, which was held before a compensation judge on December 12, 2023. 

The employee testified at the hearing and described her mental health before and after her COVID-19 diagnosis.  Prior to COVID-19, she explained that despite ongoing depression, anxiety, and PTSD, she managed to work, serve on various work committees, drive a car, sleep without nightmares, engage in hobbies including sewing, knitting, playing piano, cooking, and reading, and was able to attend family get-togethers.  She was also able to track conversations, recall day-to-day routines, and competently work as a nurse and teach her patients.  She admitted that despite being able to manage her conditions, she felt stressed and overwhelmed with the workload, which compounded her stress and anxiety symptoms.  She also admitted that she used Family Medical Leave Act (FMLA) leave often to attend appointments due to the severity of her symptoms, which included fatigue, difficulty concentrating, and migraines. 

Since her COVID-19 diagnosis, the employee explained that she cannot track conversations, recall routines, or follow recipes.  She is unable to read books and must listen to audiobooks, sometimes having to rewind and listen again.  She can no longer drive, sew, or play piano because she forgets basic steps.  She gets headaches regularly and must lay down.  She sleeps poorly with PTSD nightmares.  She described her anxiety and depression as having dramatically increased from the time before her infection.  She eventually was approved for social security disability benefits based on her long COVID-19 diagnosis.

On January 19, 2024, the compensation judge issued a findings and order determining that the employee continues to experience long COVID-19 symptoms and that her underlying mental health diagnoses were substantially aggravated by her work-related COVID-19 occupational disease.  The compensation judge found the opinions of Drs. Schmitz, Zhang, and Slavik more persuasive than those of Dr. Yarosh.  Consequently, he ordered the employer and insurer to pay the employee wage loss benefits, medical benefits, including out-of-pocket medical expenses and medical mileage, and rehabilitation benefits.  The employer and insurer appeal.

STANDARD OF REVIEW

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).

DECISION

The employer and insurer argue that the compensation judge committed reversible error in granting the employee’s claims.[4]  They assert that the employee’s evidence, including her testimony and the reports of her experts, was so flawed that it did not meet the burden of proof.  We are not persuaded.

First, the employer and insurer argue that the employee lacks credibility.  They point to an email exchange between the employee and Dr. Zhang’s clinic, characterizing it as an attempt to alter the medical record.[5]  The employer and insurer argue this court must reverse the compensation judge’s findings and order due to the employee’s “calculated attempt to improperly influence the content of her medical records to bolster her claim . . . .” because  the “brazen scheme to generate factitious evidence destroys the employee’s credibility regarding the nature and cause of her ongoing symptoms.”  (App. Brief at 13.)  The employer and insurer further argue that this effort by the employee was compounded by her attorney’s choice to “carefully omit” the email exchange from the medical records.  (Id.)  We do not agree.

The hearing transcript shows that the employer and insurer cross-examined the employee regarding the email correspondence.  The employee explained in her testimony that the email was her effort to make sure the doctor accurately recorded the purpose of her medical visit.  The record also shows that the email correspondence was admitted into evidence. 

Credibility determinations are the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 834-35, 42 W.C.D. 220, 225 (Minn. 1989).  Here, the compensation judge made no specific finding regarding the credibility of the employee, but noted he found her testimony of her ongoing long COVID-19 symptoms credible in his memorandum.  See Minn. Stat. § 176.371 (a compensation judge’s memorandum is to delineate the reasons for a decision and for discussing credibility of witnesses).  Further, even if the employer and insurer’s characterization of the employee’s motives is to be believed, Dr. Zhang did not change the medical record, and the employee’s alleged intent does not automatically negate the employee’s credibility on all matters material to her case.  Failing to accept the employer and insurer’s interpretation of email correspondence between patient and clinic does not in itself manifest legal error.

The employer and insurer also assert that the employee exaggerated her symptoms to all of her doctors and, most likely, in her testimony.  The medical records submitted into evidence contradict this argument.  The doctors who performed the many assessments since her December 2020 diagnosis did not find her to be lying, malingering, or otherwise exaggerating her symptoms.  Rather, as Dr. Micklewright noted, “it is clear that she has psychiatrically decompensated and experienced a significant exacerbation of her mood symptoms as a result of the infection and subsequent symptoms.”  (Ex. U.)  Employers take employees as they come, with all of their infirmities.  If work activity, injury, or occupational exposure causes those pre-existing conditions to be exacerbated, the resulting wage loss, medical expense, and other losses become compensable.  Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).  That the employee might be more fragile and susceptible to aggravated symptoms than other employees does not render her less credible nor her condition less affected by her workplace exposure.

Next, the employer and insurer argue that Dr. Slavik’s opinions lack foundation based on her credentials.  They argue that she attended a for-profit university and that a substantial amount of her work comes from the same law firm, usually issuing opinions favorable to the law firm’s clients.  (App. Brief at 10, App. Reply Brief at 5.)  We fail to see a legal basis to give zero weight to opinions of medical experts who attended for-profit universities as compared to those who received their degrees elsewhere, or any legal basis to conclude that an expert who performs work for a law firm on multiple occasions renders the expert’s opinion unfounded.  See Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 477, 42 W.C.D. 1118, 1121 (Minn. 1990) (questions regarding the qualifications of an expert do not usually go to the admissibility of the expert’s opinion but merely to its weight).  The employer and insurer also point to the fact that Dr. Slavik admitted that she has no specific training regarding how COVID-19 worsens a person’s mental state.  However, expert opinion “need only be based on enough facts to form a reasonable opinion that is not based on speculation or conjecture.”  Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017) (quoting Gianotti v. Indep. Sch. Dist. No. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017)).  As was pointed out by Dr. Zhang, COVID-19 is still a relatively new disease, and the ramifications of exposure are still in the infancy of understanding.  It was not unreasonable for the compensation judge to consider and weigh each medical expert’s opinion on how COVID-19 affects mental health, as each expert gave an opinion to the best of their medical certainty under the limited available research of the disease and its consequences.  Because Dr. Slavik’s medical opinions are adequately founded, we uphold the compensation judge’s choice of medical opinion.[6]

Finally, the employer and insurer argue that the employee had a litany of mental health issues long before her employment with the employer and long before her COVID-19 exposure and that these conditions created the need for a substantial amount[7] of time off work, mental health care, and on occasions, significant treatment including hospitalizations, and after the COVID-19 exposure, the employee remained the same.  The employer and insurer assert that the work injury may have caused a minor temporary increase of the employee’s pre-existing conditions, but that the ongoing symptomatology is consistent with her struggles throughout her lifetime.  While the employer and insurer acknowledge that the opinions of Dr. Slavik and Dr. Schmitz support the employee’s argument, the employer and insurer argue that both doctors “glossed over” or ignored the employee’s past mental health history, making foundation of their medical opinions insufficient.  We are not convinced.

Review of the records show that Dr. Schmitz and Dr. Slavik were well aware of the employee’s past psychiatric history, including her significant prior traumas and therefore their opinions have adequate foundation.  Further, while Dr. Yarosh believed that the employee had only a temporary worsening of her mental health condition from her COVID-19 occupational disease, Drs. Slavik and Schmitz opined otherwise.  Dr. Schmitz treated the employee both before and after her COVID-19 exposure and wrote that the employee was in “acute decline” and worse than at any point in their doctor-patient relationship, contradicting the argument put forth by the employer and insurer that the employee’s symptoms are not only identical in nature, but also in degree.  (Ex. G.)  The compensation judge did not abuse his discretion by adopting the opinions of Drs. Slavik and Schmitz over those of Dr. Yarosh.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985); Gianotti, 889 N.W.2d at 803, 77 W.C.D. at 126 (Minn. 2019); Ruether, 455 N.W.2d at 478, 42 W.C.D. at 1121 (Minn. 1990) (a compensation judge has wide discretion to choose between competing and conflicting medical experts’ reports and opinions).

We have carefully reviewed the medical, testimonial, and other evidence, as well as the arguments raised by the employer and insurer.[8]  This court’s review is not to determine which evidence was more persuasive, but to determine whether there was substantial evidence to support the conclusions of the compensation judge.  Lagasse v. Horton, 982 N.W.2d 189, 201-02 (Minn. 2022) (the W.C.C.A. must defer to the compensation judge if the findings are supported by substantial evidence.)  Substantial evidence, including Dr. Slavik and Dr. Schmitz’s medical opinions and the employee’s testimony regarding the change in her condition after her diagnosis, supports the compensation judge’s finding that the employee continues to suffer from long COVID-19 symptoms and an aggravation of her pre-existing psychological conditions arising from her occupational disease and, therefore, we affirm.



[1] The parties stipulated that the employee contracted COVID-19 on December 31, 2020, an occurrence which arose out of and in the course of her employment.

[2] The evaluation included a clinical interview and a battery of tests.  The employee’s history of trauma and pre-existing mental health symptoms and care was included in the interview.

[3] The Test of Memory Malingering (TOMM) was included in the battery of tests conducted.

[4] The employer and insurer appealed the compensation judge’s finding of the employee’s weekly wage but did not brief the issue.  We consider unbriefed issues as waived and will not address this further.  See Minn. R. 9800.0900, subp. 1.

[5] Following her deposition taken on September 27, 2021, the employee contacted Dr. Zhang that same day via the medical messaging system used by Allina Clinics.  The employee wrote:

I had a deposition with the clinic’s attorney today and he made it sound like I had depression, anxiety, insomnia before COVID-19 infection, and my worsening symptoms have nothing to do with COVID-19.

For work comp reasons I need your 9/14/21 visit note to state reason for appointment is related to my COVID-19 illness that has exacerbated my depression, anxiety, & PTSD and worsened my insomnia.  Also that because of the COVID-19 Long Hauler exacerbation of my mental health you are addressing the need to adjust/change my medications.

Does that make sense?

(Ex. 56.)  When the employee was instructed by Dr. Zhang’s nurse that these concerns should be handled by the medical records team, the employee replied that the message was not for “medical records” and that it was “very important” that Dr. Zhang review and address the message.  (Id.)

[6] The employer and insurer also argue Dr. Slavik’s opinion lacks foundation for her failure to review Mayo Clinic records from 2008 to 2014.  Although she did not review those older records, her reports show she was aware of the employee’s prior mental health diagnoses and care.  It was the compensation judge’s discretion to decide whether Dr. Slavik’s failure to review these records was fatal to her opinion and whether it lacked foundation.

[7] Due to her mental health care and treatment, the employee used FMLA leave regularly beginning in 2015 through January 2020. 

[8] In their brief, the employer and insurer argued that the compensation judge failed to conduct an analysis of whether the employee’s condition was temporary or permanent under the factors set out in McClellan v. Up North Plastics, slip op. (W.C.C.A. Oct. 18, 1994).  The issue of whether the employee’s occupational disease was temporary or permanent was not before the compensation judge.  Although Dr. Slavik opined in her report that the employee had a ratable PPD, the employee did not make a claim for PPD benefits and the compensation judge made no finding of permanency, nor was the employee awarded any PPD benefits.  Issues not raised at hearing cannot be raised for the first time on appeal.  See Bradford v. Bureau of Engraving, 459 N.W.2d 697, 43 W.C.D. 279 (Minn. 1990).