EMMANUEL MARTINEZ-CRUZ, Employee/Appellant, v. METRO TRANSIT POLICE and METRO. COUNCIL, Self-Insured Employer/Respondents, and HEALTHPARTNERS, INC., Intervenor.

The employee appeals from a determination that the self-insured employer rebutted the presumption of post-traumatic stress disorder (PTSD) as an occupational disease under Minn. Stat. § 176.011, subd. 15(e).  We affirm.

The employee, Emmanuel Martinez-Cruz, began working for the employer, the Metro Transit Police Department, as a licensed peace officer in 2013.  While working at this job, he often encountered and at times pursued or physically subdued people engaging in threatening or assaultive behavior, sometimes experiencing potential danger to his own personal safety.

Occasionally, the employee encountered situations where people had sustained very serious injuries and, on two occasions, the employee’s work brought him into contact with deceased persons.  The first incident involving a deceased individual occurred about 2014 or 2015 when the employee was sent to secure the scene at a location where a woman had been struck by a light rail train.  He testified this was traumatic for him as it was the “first major incident” he had responded to, and he could see that a visible injury to the woman’s head exposed part of her skull and brain tissue.  (T. 46.)  In a subsequent incident, around 2017 or 2018, he was sent to a location where a bicyclist had been killed in another train accident.  Although the deceased did not show any visible signs of trauma, the employee recalled this latter incident as significant because he saw the deceased’s family members arrive and it was the time “when I realized my sympathy and connection to people was gone.” (T. 48.)

On multiple occasions, the employee injured or reinjured his left knee while pursuing people fleeing arrest.  He stated in a psychological examination that in 2020, during the civil unrest following the murder of George Floyd, he was “expected to stand in hostile and dangerous areas of the city” where he was directly subjected to verbal abuse and thrown objects and frequently felt that his personal safety was under threat.  (Ex. I.)

On June 27, 2019, the employee was seen at Park Nicollet Health for issues with sleeping.  He reported that he had been having sleep apnea for at least six years.  On a checklist, he indicated that he did not have and had not had any major anxiety or depression.  He reported occasional work or family stress, but noted no difficulty doing his work, taking care of things at home, or getting along with others.  Alcohol use, he indicated, averaged two drinks per day.  The employee was again seen for mild obstructive sleep apnea on January 9, 2020.  He complained of difficulty falling and staying asleep while using his CPAP, as well as increased sleep anxiety.  He reported feeling like a failure and that he felt he let himself or his family down several days per week.  On January 30, 2020, the employee underwent a diagnostic assessment for insomnia.  He reported that he had been having insomnia since his mid-twenties which had started spontaneously. There was no mention of any PTSD symptoms.

The employee had a long history of what some of his physicians diagnosed as a substance abuse disorder involving heavy use of alcohol.  In 2021, the employee reported to a physician that since, age 21, he habitually drank to intoxication and had subsequently often been a weekend binge drinker.

His conduct off duty while drinking eventually resulted in two incidents that led to disciplinary action by the employer.  The first occurred on July 5, 2020.  The employee and his brother had been drinking in Kandiyohi County and were removed from a bar after the employee tried to help someone get into the bar without identification.  The employee became argumentative, smashed two beer bottles in the parking lot and scuffled with security.  When questioned by law enforcement personnel, he refused to provide identification and used a sexually derogatory term to refer to a female officer.  Although the employee was allowed to leave without being arrested, the county sheriff made a complaint about his conduct to the employer.  On November 6, 2020, the employer suspended him for failing to abide by department policy.  He was warned not to engage in the same or similar violations for 36 months.

The second disciplinary incident associated with the employee’s drinking occurred four months later, on February 26. 2021.  A vehicle in which the employee was a passenger was pulled over for expired tabs by the Willmar Police Department.  During the incident, the employee argued with the officer making the stop and received a verbal warning for failing to comply with a peace officer’s lawful order.  The Willmar Police reported the incident to the employer and the employee was put on administrative leave on March 1, 2021, pending disciplinary review of the incident.

Following imposition of this disciplinary suspension, the employee decided to consult with a therapist at the employer’s employee assistance program and was initially seen on March 10, 2021.  He reported that he was on leave while his agency investigated a complaint about an off-duty incident and stated that stress from his marriage and law enforcement had caused him to drink more often.  The employee also mentioned that he had been in contact with a workers’ compensation attorney and was considering a claim for PTSD.  The employee returned to this therapist on March 16, 2021, and discussed symptoms associated with possible PTSD.  He stated that he had been happy with his employment until several years earlier, when he was taken off future interview panels after voicing an opinion about minority candidates.  He also reported that he was experiencing stress over the public perception of police officers.  The employee retained legal counsel on March 21, 2021.

At a third therapy visit on March 24, 2021, the employee noted that he had started drinking at 21, that he sometimes drank to severe intoxication, and that his parents, siblings, and various coworkers had been concerned about his drinking.  He completed a substance abuse screening which showed a high probability of a substance abuse disorder, and the therapist recommended that he stop drinking for at least six months until he could better control his drinking.

On March 29, 2021, the employee sought psychological counseling at the Associated Clinic of Psychology.  An initial screening was performed by Robert Hoppe, a licensed psychologist.  Dr. Hoppe noted that the employee reported that he had started to psychologically decompensate in 2017 or 2018 while administrators were discussing whether to cover an injury he sustained while chasing a robbery suspect, causing him to become depressed and abuse alcohol, because he did not know how to cope.  Based on a screening test, Dr. Hoppe concluded that the employee had symptoms consistent with a trauma or stressor related disorder, “likely” PTSD, and that he should start individual therapy, undergo a full psychological evaluation to clarify his diagnosis and treatment recommendations, and not work as a police officer pending further evaluation.  (Ex. M.)

In a telephone visit with Dr. Hoppe on April 6, 2021, the employee again reported that his work and personal life were impacted by his alcohol consumption.  Dr. Hoppe opined that, concurrent with a diagnosis of PTSD, the employee had “significant symptoms” of persistent depressive disorder and generalized anxiety disorder.  The employee initiated ongoing psychotherapy visits with Dr. Hoppe on April 19, 2021.  On that date, the employee’s stated concern was an anxiety disturbance; Dr. Hoppe characterized the employee as “in a state of distress due to an internal affairs event that occurred with him while he was off duty.”  (Ex. X.)

On April 23, 2021, the employee was seen again at the Associated Clinic of Psychology, but on this occasion, he was assessed by Paul Ekberg, DO, a licensed psychiatrist.  The employee reported a two-year history of worsening anxiety, mood problems, and PTSD issues. Dr. Ekberg opined in his chart notes that “[the employee’s psychological problem] tends to stem from some event that happened with internal affairs division of his police department.”  (Ex. X.)   In addition to the PTSD diagnosis, Dr. Ekberg added a diagnosis of moderate alcohol use disorder and prescribed Lexapro and hydroxyzine.

On May 1, 2021, the employer notified the employee of its disciplinary findings and its intent to terminate him subject to a further hearing.  The employer terminated the employee on June 2, 2021.

On June 15, 2021, Dr. Slavik conducted a psychological evaluation of the employee at his attorney’s referral.  Diagnoses in her August 20, 2021, report included chronic PTSD and mild alcohol use disorder.  She opined that the employee required treatment for PTSD and recommended that he decrease his alcohol use.  Dr. Slavik completed a PERA Police & Fire Plan Disability Medical Report on September 10, 2021, again with a diagnosis of PTSD and mild alcohol use disorder.  She opined that the employee’s condition had progressively worsened but anticipated that he could work in a job other than as a police officer following appropriate treatment.

On November 24, 2021, Jessica L. Thackaberry, M.D., completed a peer review report related to the employee’s application for PERA disability benefits and opined that the medical records supported the diagnoses of PTSD from work-related trauma and of alcohol use disorder.

The employee filed a claim petition on March 4, 2022, seeking payment of temporary total and temporary partial disability benefits, and various medical benefits.

On May 16, 2022, Paul A. Arbisi, L.P., conducted an independent psychological evaluation of the employee on behalf of the employer.  Dr. Arbisi issued a report noting that the employee’s responses on the MMPI showed marked symptom magnification.  Dr. Arbisi opined that the employee had a longstanding alcohol use disorder unrelated to his work for the employer.  He noted that the incidents the employee had identified to him as the most troubling did not support a diagnosis of PTSD under the DSM criteria, that the employee did not display avoidance behavior, and that his reporting of symptoms was inconsistent.  Based on his review of the records, his interview with the employee and the results of psychological testing, Dr. Arbisi opined that the employee did not meet criteria for PTSD and “had not sustained or developed posttraumatic stress disorder caused by his work activities at Metro Transit.”  (Ex. 1, at 23.)

Dr. Hoppe provided intermittent treatment to the employee from June 2021 through the date of hearing. The employee’s medical records indicate continuing improvement in his condition.  Dr. Hoppe provided a report dated November 29, 2022, opining that the employee met the DSM-5 criteria for PTSD, persistent depressive disorder, and generalized anxiety disorder which seemed to directly relate to events he experienced in law enforcement.  The report noted that the employee had made progress over therapy sessions, but had ongoing persistent negative emotions/depressed mood, hypervigilance, an exaggerated startle response, difficulty with concentration, sleep impairment, mild thought intrusions and avoidance symptoms.  Dr. Hoppe noted the employee was continuing in therapy on an as-needed basis.   The parties have stipulated that the employee did not meet the criteria for PTSD as of the date of Dr. Hoppe’s report.

Dr. Arbisi was asked to review updated information including Dr. Hoppe’s report.  In his report of April 11, 2023, Dr. Arbisi commented on Dr. Hoppe’s report as follows:

A hearing on the employee’s claims was held before a compensation judge on April 12, 2023.  Following the hearing the compensation judge found that the employee met the requirements for application of the PTSD presumption under Minn. Stat. § 176.011, subd. 15(e).  The judge found that the self-insured employer had rebutted the presumption, that the employee’s problems stemmed from an event that happened with internal affairs, and that the employee had failed to prove a compensable mental impairment in the nature of PTSD.  The judge denied all of the employee’s claims.  The employee appeals.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1(3).  Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.”  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

The employee contends that the compensation judge erred in the application of Minn. Stat. § 176.011, subd. 15, regarding the presumption of a PTSD diagnosis for police officers, with respect to the employer’s rebuttal of the presumption, and the compensability of a PTSD claim in which the employee’s condition stems from disciplinary action.

Since October 2013, post-traumatic stress disorder is a mental impairment that is compensable as an occupational disease under the Minnesota workers’ compensation law, as long as the requirements of Minn. Stat. § 176.011, subd. 15, are fully met.  Under subdivision 15(d), the diagnosis must be made by a licensed psychologist or psychiatrist and be consistent with PTSD as described in the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association (DSM).  Subdivision 15(e) provides that members of certain occupational groups, including licensed police officers, who are first diagnosed as defined in paragraph (d), are entitled to a presumption that the condition is an occupational disease which is due to the nature of the employment.  However, the employer may rebut this presumption by communicating to the employee in the Notice of Denial of Primary Liability Determination (NOPLD) that there are substantial factors which challenge the presumption and diagnosis.  Minn. Stat. § 176.011, subd. 15(e).  Notwithstanding the applicability of the presumption, PTSD which results from disciplinary action taken in good faith is expressly excluded from compensability.  Id.

The employee argues that Dr. Arbisi’s opinion lacked adequate foundation, and the compensation judge erred in adopting Dr. Arbisi’s medical opinion.  The employee argues that Dr. Arbisi did not address whether the employee had PTSD on April 6, 2021, that Dr. Arbisi chose to limit his review of Criterion A events to two events, ignoring several other significant events, and that the judge erred in her analysis of the presumption and rebuttal under Juntunen v. Carlton Cnty, 982 N.W.2d 729 (Minn. 2022).  We are not persuaded.

The compensation judge found that the subd. 15(e) presumption was met.  She found that the employee was a police officer with no prior mental impairment who was diagnosed with PTSD using the DSM-5 by a licensed psychologist.  The judge also found that the employer successfully rebutted the presumption of work-related PTSD.  She reasoned that in the NOPLD, the employer noted that the First Report of Injury made no mention of PTSD.  The employer also met its burden in rebutting the presumption with Dr. Arbisi’s reports that the employee did not meet the definition of PTSD under the DSM-5.  Relying on Juntunen, the judge concluded that where the employer rebuts the presumption, the burden shifts back to the employee to prove a work-related PTSD claim.  Here, the judge found that the employee did not meet his burden of proof.

The compensation judge reviewed and weighed the medical opinions of several experts.  She found the opinions of Dr. Arbisi and Dr. Ekberg persuasive.  The compensation judge’s choice among conflicting expert medical opinions must be upheld unless the opinion lacked adequate factual foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  An expert’s opinion need only be based on enough facts to form a reasonable opinion that is not based on speculation or conjecture. Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 77 W.C.D. 117 (Minn. 2017). 

The compensation judge found that the employee’s expert, Dr. Slavik, mentioned multiple Criterion A events in her report, but the judge did not find her opinion persuasive.  Instead, she adopted Dr. Arbisi’s opinion which focused on the two most significant traumatic events described by the employee as most troubling.  Dr. Arbisi examined the employee, took a medical history from the employee, administered testing, and reviewed the medical records and medical opinions.  Dr. Arbisi drafted two narrative reports.  In the first report, he explained that the employee’s MMPI findings showed marked symptom magnification.  He determined that the employee’s traumatic events did not rise to the level of a Criterion A event.  He also determined that the employee did not have avoidance behavior, and that he inconsistently reported symptoms.  Dr. Arbisi concluded that the employee suffered from moderate alcohol abuse disorder.

In his second report, Dr. Arbisi addressed Dr. Hoppe’s initial PTSD diagnosis.  Unlike in Juntunen, Dr. Arbisi’s opinion was not time limited to a 30-day period preceding his report, but on its face appears to indicate an opinion that at no time did the employee’s work activities cause PTSD. Dr. Arbisi noted that Dr. Hoppe’s documentation and generic style of reporting provided insufficient information to suggest that any “endorsed symptoms were tied to an event that occurred while Mr. Martinez-Cruz was a Metro Transit Police Officer.”  (Ex. 16, at 3.)  This critique did not constitute an admission that Dr. Arbisi could not render an opinion regarding whether the employee suffered from PTSD over the relevant period.  There was substantial evidence supporting the judge’s conclusion that the presumption of PTSD had been rebutted by the employer and that the employee failed to carry his burden of proof to establish that he suffered from compensable PTSD.

The compensation judge also accepted as persuasive the opinion of Dr. Ekberg who stated that the employee’s problems tended “to stem from some event that happened with internal affairs division of his police department.”  (Finding 51.)  The judge found that Dr. Hoppe reported that the employee was in a state of distress due to an internal affairs investigation of an off-duty event.  (Finding 21.)  In addition, the judge found that the employee first sought treatment for PTSD complaints only after the disciplinary suspensions that ultimately terminated his employment.  (Finding 13.)  This evidence supports a reasonable inference that the employee’s condition arose from good faith disciplinary action taken by the employer.

We see no foundational defect that would disqualify Dr. Arbisi’s opinion and we conclude that the judge did not err in adopting Dr. Arbisi’s opinion that the employee did not have PTSD.  There is substantial evidence in the record supporting the judge’s conclusion that the employee’s PTSD condition resulted from disciplinary action which renders the employee’s claim noncompensable under the Act.  For these reasons, we affirm.