LUCAS PETERSON, Employee/Respondent, v. CITY OF MINNEAPOLIS, Self-Insured Employer/Appellant, and FAIRVIEW HEALTH SERVS. - ALL ENTITIES, LIFE DEVS. RES. P.A., Intervenors.

The self-insured employer appeals from the compensation judge’s findings that the employee sustained a compensable post-traumatic stress disorder (PTSD) injury, and that the employee continues to suffer from the compensable PTSD injury.  The employer further appeals the compensation judge’s finding that the employee suffers from another mental health condition as a consequence of the PTSD injury.  The employer also appeals the award of a penalty for a frivolous denial of primary liability.  We affirm.

The employee, Lucas Peterson, was hired in 1999 by the employer, the City of Minneapolis, as a community service officer.  Before being hired, the employee was seen by Dr. Gary Fischler, a licensed psychologist, for a pre-employment mental health examination.  Dr. Fischler interviewed the employee and administered several mental health assessments.  In a June 7, 1999, report, Dr. Fischler opined that the employee, then 19 years old, did not appear to have any significant personality or emotional difficulty.  Dr. Fischler conducted a similar examination of the employee before he entered the police academy, and in an August 3, 2000, report, he again found the employee had no significant personality or emotional problems.  The employee became eligible to carry a firearm while he was in the academy, and upon graduation, became a police officer.  He had no mental health diagnoses or treatment at that time.

Over the next 21 years, the employee experienced several significant traumatic events as a police officer.  On many occasions, he feared for his life and the lives of his fellow officers or civilians.  He experienced 10-15 officer-involved shootings, 3-5 of which resulted in him shooting at another person.  He responded to 30-50 homicide calls, of which 5-6 involved the deaths of children.  During his 18 years as a member of the special weapons and tactics (SWAT) team, the employee worked as part of several units, including the Gang Strike Force, the Community Response Team, the Undercover Narcotics Unit focused on violent drug-related crimes, the FBI Safe Streets Program, and the ATF-sponsored Weapons Unit.  As a SWAT team member, the employee had “call outs” for full or partial mobilization of the SWAT team for barricaded suspects or crimes in progress 3-5 times per month.  He also conducted warrant service in potentially dangerous situations.  The employee was promoted to sergeant, and he trained police officers, fire fighters, sheriffs’ deputies, and metro transit officers in workplace violence and active shooter response scenarios for about two years.  He became a supervisor on the overnight shift, then on the weapons unit, and later, on the SWAT team.  As a supervisor, he was always on call and “slept with a cell phone” next to his bed for about 15 years.  (T. 54.)

In November 2002, the employee responded to a report of an assailant attempting to stab his girlfriend with a knife.  The employee was disarmed while attempting to handcuff the assailant, and in the ensuing altercation, the assailant’s neck was broken, killing him.  The employee continues to have a reaction to the sight and smell of the soap he used after this incident.  He testified that he was about 22 years old at the time and that it was tough to have taken another person’s life even though he was in fear for his and his partner’s lives.  (Ex. E.)

Following this event, his supervisors noticed the employee seemed withdrawn and detached and had him undergo a fitness-for-duty evaluation by an employer-approved doctor who was not a psychologist or psychiatrist. The employee testified that the doctor told him to “[g]row up and suck it up.”  (T. 73.)  The doctor also recommended that he talk with a psychologist about the critical incident.  Beginning in 2002, the employee saw a counselor, Dennis Conroy, on and off for about three years.  These therapy records are not in the record on appeal.

In 2005, the employee faced heavy gunfire while executing a search warrant.  He recalls memories of the shooting when he drives through the neighborhood where it took place.  He testified that at the time, he was not so much fearing for his life as he was doing his job, but that the gravity of the situation later hit him.

In July 2006, the employee and his partner were assisting two other officers in a chase of a suspected rapist.  When they stopped the suspect, he swung a knife at the employee, starting an altercation.  While fighting with the employee in close quarters, the suspect stabbed two other officers before being shot and killed.  The employee and his partner provided medical aid to the injured officers, both of whom suffered life-threatening lacerations of their femoral arteries.  The actions of the employee and his partner saved the lives of the injured officers.

On September 27, 2012, the employee, along with his SWAT team, responded to an active shooter situation at a local business.  Upon arrival, he and his partner searched the facility for over two hours to locate the suspect.  During the search, they found nine victims.  Each victim’s vital signs were checked by the employee.  Seven died from having been shot in the head.^[1]  He described the scene as “carnage.”  (T. 98.)  Since that incident, hearing about active shooter situations reminds the employee of that day.

The employee responded to a call of a barricaded suspect on March 8, 2013, after a parole officer conducting a routine visit was met with the suspect brandishing a shotgun.  When negotiations failed, officers attempted to force the suspect out with chemical munitions.  The suspect responded by firing his shotgun in the direction of the employee, who returned gunfire.  No one was significantly injured, but the employee suffers ongoing hearing loss due to the noise from the gunfire exchange.  (Ex. E.)

On May 10, 2013, the employee and his SWAT team responded to a call of a car chase after a police officer was possibly struck by a car driven by a burglary suspect.  The suspect abandoned the car, broke into another building, and hid in a dark basement.  The team entered the building and encountered the suspect, who disarmed an officer and shot two officers in their legs.  Both were close friends of the employee.  The suspect also fought with the employee, who collapsed on top of the gun to prevent further shooting by the suspect.  The employee shot the suspect in the head, instantly killing him.  The employee then “went to work” to save one of the officers who had been shot.  (T. 89.)  He applied a tourniquet to the officer, whose femoral artery had been struck, and the officer screamed in pain.  The employee carried him up the stairs to a waiting ambulance, not sure whether the officer would live.  Later at the hospital, he learned both officers had survived.  He began having difficulty sleeping and still has vivid nightmares regarding this incident.  The smell of gun powder triggers memories of this incident.  The event was covered on the local news and was subject to a grand jury investigation.  The employee testified that before the suspect was killed, he was certain they would all die in the basement given the circumstances.  (T. 92-93.)

The employee testified that the time period during and after these three incidents, from September 2012 through May 2013, was a “tough” time, especially after the May 2013 incident.  “You know, we never really had a chance to decompress from it.  I went from being involved in that incident to being, you know, a subject on the news and having people come to my home and threaten my wife and family, and, you know, it was tough.  I --- I feel like probably for like the first year I never really got closure on it.”  (T. 94.)  He was placed on administrative leave for a short time during the grand jury investigation.  He installed security cameras in his home, and his wife was followed and accosted in public.  His home and family were given 24-hour security and members of the employee’s SWAT team would stay at his home.  Years later, fellow officers occasionally check on his family and his home.  He had a hard time sleeping and was always on guard.  The employee testified that it was hard enough to have taken another person’s life, but the constant reminders never allowed him to move on from these incidents.  (T. 110-11.)

On December 1, 2019, the employee was attending his son’s baptism ceremony when he was called to an incident.  He immediately left the ceremony.  The incident involved a man who had murdered his wife and two children before taking his own life.  The employee assisted in recovering the bodies of the victims and the assailant.  After this incident, the employee’s wife stated that he was showing numbness and a lack of empathy, and that he had chosen another family in crisis over his own in celebration.  (Ex. E.)

In May 2020, the employee was the lead SWAT team supervisor charged with quelling the riots which occurred in Minneapolis following the death of a citizen caused by a police officer during an attempted arrest.  At the time he was at a cabin with his family and had to leave them to return to the city.  He worked 18- to 20-hour shifts over 11 straight days.  Two of the nights he did not go home, and instead slept on the floor at a precinct before starting another shift.  The officers were shot at with firearms and other projectiles, including rocks, bottles, bricks, fireworks, feces, urine, metal rebar, and mason jars filled with frozen water.  The employee suffered physical injuries including lacerations, contusions, a broken toe, and chemical burns.  The employee and his team rescued 50 officers from the Third Precinct building before it was burned to the ground, and the employee described being “the last person” out.  (T. 116.)  The next night, the SWAT team prevented a similar event from happening at another precinct building.  Each day was a matter of survival and only upon later reflection did the employee think “I can’t believe that I didn’t die here.”  (T. 120.)  He was also like a “mamma bear” in making sure he protected his fellow officers.  (Id.)  During this time, the employee began to heavily self-medicate with alcohol.  He testified that “emotionally I was – I was smoked.”  (T. 61.)  He stopped engaging in any hobbies and would get “over the top” angry about the littlest things.  (T. 122.)  He felt extremely isolated, depressed, and detached from his entire family.  His only friends were fellow officers, having lost most relationships with other friends.  His wife was ready to leave him, although he did not know that at the time.

The employee felt that he was not performing well as a supervisor.  He would become angry, forgetful, and unreliable in his attendance and supervision.  Later in 2020, while the SWAT team was working undercover, a shooting incident took place near their location.  One of the armed suspects involved approached the window of the employee’s car.  In the “biggest act of cowardice” of his career, he did not confront the armed suspect, and instead drove away.  (T. 126.)  The employee testified that the burden of taking a life was hard to live with and knowing he could have to go through that experience again led him to not react in that situation.

On January 14, 2021, an armed suspect led the response team officers on a car chase that ended with the car crashing and with gunfire – over 40 shots – being exchanged at close quarters between the officers and the suspect.  The employee arrived on the scene shortly after the crash, managed the scene, and arrested the suspect, who had barricaded himself inside the crashed car.  After that incident, the employee began to notice the cumulative effect of his many traumatic experiences, including sleepless nights, nightmares, panic attacks, and he began taking time off work feeling he could not keep himself safe.  The employee testified:

In March 2021, while on vacation with his wife, the employee acted distant and drank heavily, which led to arguments.  Mrs. Peterson confronted him about his behavior, telling him to get help or that she would leave him.  At this time, the employee also learned that the Minnesota Bureau of Criminal Apprehension (BCA) had reopened an investigation of the employee’s actions during the May 10, 2013, incident.  A local newspaper article implied that he had murdered the suspect.  The employee felt that this investigation reopened an old wound that had been resolved eight years earlier.

The employee found Nick Weidner^[2] of Life Development Resources through the employer’s Employee Assistance Program (EAP), and began therapy, twice per week, in March 2021.  Under the EAP, this therapy was confidential and there are no therapy records from the first 15 visits with Mr. Weidner in the record on appeal.  In a pre-hearing deposition, the employee testified that he started to see Mr. Weidner after learning that the 2013 incident was being reopened for investigation.  He further testified that the new investigation was more impactful than the actual incident itself.  At the hearing, the employee explained that the incident itself was very traumatic, and having to relive the incident again after so many years with the new investigation was like ripping a bandage off an open wound and “never has let [him] heal.”  (T. 181-83.)  While he was concerned about the investigation, he testified “I can’t convey enough though that that is outweighed by the constant trauma and reminder of what the incident has done to me personally, professionally, emotionally, and how it’s affected my mental health.”  (T. 184.)  He also testified that he sought assistance at that time because his wife had stated she would leave him if he did not get help.

On March 28, 2021, the SWAT team, including the employee, was activated to quell potential civil unrest in light of a high-profile trial.  He experienced anxiety and flashbacks to the 2020 riots during this time.  He felt uncertain as to what might happen, that he might not be able to help, and that he could face jail time if he took action and something went wrong.  Shortly after, in April 2021, his team was activated for four weeks to help another department deal with potential unrest due to another high-profile officer-involved shooting.

At Mr. Weidner’s suggestion, the employee was seen for a video visit by Dr. Peter Dahlstrom^[3] of M Health Fairview – Vadnais Heights Clinic on April 20, 2021, to discuss his difficulty sleeping and concentrating.  Dr. Dahlstrom diagnosed the employee with anxiety related to multiple work-related stressors.  He prescribed sertraline, commonly known as Zoloft.

About a week later, on April 28, 2021, the employee hired an attorney to pursue claims for PERA duty-disability and workers’ compensation benefits.

On May 3 and May 10, 2021, the employee met Mr. Weidner for a mental health diagnostic assessment.  Mr. Weidner interviewed the employee and administered several mental health assessments.  The employee reported feelings of unpleasant emotions related to traumatic events at work as a police officer.  He described that he previously had therapy following the 2002 incident but otherwise had not seen anyone for mental health issues until starting with Mr. Weidner.  He reported symptoms of anger, painful recollections, anxiety, inability to self-cope, hypervigilance, irritability, somatic symptoms of sweaty palms and increased heart rate when entering the City of Minneapolis, cycles of anger and depression, poor concentration, negative self-worth, detachment, estrangement, exaggerated startle response, and impulsive behavior.  Mr. Weidner diagnosed PTSD and generalized anxiety disorder.  He recommended the employee continue therapy.

Mr. Weidner recommended a treatment plan on May 17, 2021, for the primary diagnosis of PTSD.  The plan called for behavioral techniques, supportive maintenance, symptom-focused education, and eye movement desensitization and reprocessing (EMDR).  The employee continued therapy on a regular basis with Mr. Weidner through August 2021.

The employee first met Dr. John Cronin, a licensed psychologist at Primary Behavioral Health Clinics, on May 20, 2021, at the request of his attorney.  After a lengthy first meeting, Dr. Cronin deemed the employee unfit for police work and the employee stopped working as a police officer as of May 26, 2021.  After a follow-up meeting, Dr. Cronin issued a psychological evaluation report on June 21, 2021.  Dr. Cronin took an extensive history, including a recounting of the traumatic events the employee endured, and administered several clinical tests as part of the employee’s examination.  Dr. Cronin opined that the employee had diagnoses of PTSD as defined by the DSM-5,^[4] generalized anxiety disorder, and major depressive disorder, all of which were caused by his employment as a police officer for the employer, and again found that the employee was not fit for duty.  Dr. Cronin noted that the employee’s symptoms had been particularly severe in the past several weeks and were continuing to “plague him,” but that in the short time since the employee had left law enforcement, he had improved.  He also noted the employee’s prior mental health counseling “in 2002-2004 with Dennis Conroy, a counselor who has considerable experience working with law enforcement.”  (Ex. O.)  Dr. Cronin concluded:

The employee returned to Dr. Dahlstrom on June 30, 2021.  He described that the Zoloft had helped somewhat but that he was hoping to do better.  Dr. Dahlstrom increased the dosage, recommended that the employee continue with his therapy and medication, and advised that due to PTSD, the employee should not work as a police officer.  On July 2, 2021, Dr. Dahlstrom completed a PERA disability form diagnosing the employee with work-related PTSD due to cumulative traumatic events as a first responder.  He opined that the employee could work outside of law enforcement.

On June 28 and July 15, 2021, the employee reported to Mr. Weidner that the BCA investigation of the 2013 incident created significant anxiety over potentially being charged with a crime for an act that he considered had saved the lives of himself and two fellow officers.  During therapy sessions with Mr. Weidner, the employee further described additional feelings, such as being torn between staying at a job he loved and leaving for his health, knowing that his mental condition had interfered with his relationships with his wife and son.  He also noted some improvement in the degree of his symptoms once he left his job as a police officer, but also feeling out of place when socializing with friends from the department.

Despite being advised by Mr. Weidner not to work in any capacity for about a year in order to decompress, the employee looked for and found a full-time job working as a project manager for a sprinkler company.  He worked there for about two months before he was terminated after representatives of the company received an anonymous message that they had hired a murderer.  He began to look for work on his own again.

After receiving Dr. Cronin’s report, the employer filed a notice of primary liability determination on September 16, 2021.  The employer denied liability for the employee’s workers’ compensation claim, asserting that the employee did not have PTSD under the DSM-5 and that the employee was not entitled to a presumption of compensability.  The employer stated:

On October 14, 2021, Dr. Jessica Thackaberry, a board-certified psychiatrist, did a record review at the request of PERA upon the employee’s application for disability benefits.  Based on her review of the employee’s medical records, Dr. Thackaberry opined that the employee was appropriately diagnosed with PTSD under the DSM-5 and that he also suffered from symptoms of generalized anxiety disorder “within the diagnosis” of PTSD.  She further stated that due to the many work-related traumatic events, his PTSD was “fairly complex” and would require the employee to be off of work for more than one year.  She concluded that the employee was disabled from his duties due to his diagnosis of PTSD which arose out of the performance of his duties.  Finally, she opined that another evaluation was not necessary as the medical records provided “more than enough information” to substantiate her PTSD diagnosis.  (Ex. I.)

The employee returned to Mr. Weidner on October 27, 2021, to restart therapy after a two-month hiatus.  He attended three sessions through mid-November 2021, again reporting similar symptoms.

In January 2022, the employee began working as a full-time project manager at a construction company.  He still struggles with anxiety when any projects are located in Minneapolis and refuses to visit his in-laws’ home in Minneapolis with the rest of his family for weekly Sunday dinners for the same reason.

On March 3, 2022, the employee again returned to Mr. Weidner for therapy sessions.  A new treatment plan was outlined for his diagnoses of PTSD and generalized anxiety disorder aimed at treating his depression and anxiety.  Improvement in the employee’s symptoms was noted during three sessions of March 2022.  While there are no treatment notes from any of the additional sessions in the record on appeal, the employee testified that he continues to see Mr. Weidner for therapy, stating that the therapy has been very helpful and that Mr. Weidner “saved my life.”  (T. 166.)  He also testified that he has good and bad days, and struggles with anxiety, depression, concentration, isolation, and anger, but that he is improving.

On March 12, 2022, the employee was examined at the request of the employer by Dr. Kenneth Young, a licensed psychologist.  His undated report was issued shortly thereafter.  Dr. Young interviewed the employee, administered mental health assessments, and reviewed medical records and reports.  Dr. Young opined that regardless of any cause, the employee had no mental health disorder, PTSD or otherwise.  He stated that the employee did not need any further mental health care and that the previous care was unrelated to any trauma he experienced while employed with the employer.  He also laid out several points of disagreement with the opinions and methodology of Dr. Cronin.

On May 25, 2022, Dr. Kacey Aleknavicius, a licensed psychologist, examined the employee at the request of his attorney.  Dr. Aleknavicius interviewed the employee, reviewed his history, the medical records and reports, including that of Dr. Young, job descriptions, and the employee’s deposition transcript.  She also performed clinical testing of the employee. Dr. Aleknavicius issued her report on June 1, 2022, opining that the employee had previously met the DSM-5 criteria for a diagnosis of PTSD based on her review of the employee’s medical records, and has since received mental health treatment and medication which relieved some of his symptoms.  As of the time of her examination, Dr. Aleknavicius found that the employee no longer met all criteria for a PTSD diagnosis under the DSM-5 and that his diagnosis was other specified trauma disorder (OSTD).  On October 10, 2022, Dr. Aleknavicius completed a PERA disability form, stating that the employee met the standard for disability by having a condition which rendered him “physically or mentally unfit to perform the duties of a police officer” and that he should not work in any capacity as a police office or first responder on a permanent basis.  (Ex. C.)

The employee’s claim petition came on for hearing before a compensation judge on March 23 and April 27, 2023.  The issues before the compensation judge included: (1) whether the employee sustained a work-related occupational disease in the nature of PTSD as defined by Minn. Stat. § 176.011, subd. 15(d), by meeting the statutory criteria in the DSM; (2) whether the statutory presumption that his PTSD diagnosis was work-related pursuant to Minn. Stat. § 176.011, subd. 15(e), applied, and whether the employer rebutted the presumption; (3) whether the employee no longer met the PTSD criteria in the DSM and therefore was not entitled to benefits; (4) alternatively, whether the employee’s benefits should continue if he no longer met the PTSD criteria under the DSM, but his new mental health diagnosis was a consequence of the PTSD diagnosis; and (5) whether the employee was entitled to an award of penalties for a frivolous denial of primary liability given the statutory presumption.

Both Dr. Aleknavicius and Dr. Young testified at the hearing, reiterating and further explaining their opinions as described in their reports.  Dr. Aleknavicius modified her opinion to find that the employee had a PTSD diagnosis at the time of her examination in May 2022 pursuant to the updated edition of the DSM, the DSM-5-TR,^[5] published in March 2022, and its reference to “lifetime PTSD.”  Meanwhile, Dr. Young testified that because the DSM-5-TR did not change the criteria for a PTSD diagnosis, the new language did not create a new diagnosis of “lifetime PTSD.”

The employee’s wife also testified at the hearing.  The employee met his wife in high school, and they married in 2006.  Mrs. Peterson described the employee, before he became a police officer, as “fun-loving, light, kind of like a class clown almost.”  (T. 204.)  He was the life of the party, adventurous, romantic, and loved his hobbies.  He did everything with “110 percent gusto.”  (T. 205.)  By 2010, Mrs. Peterson noticed that her husband was having nightmares and was becoming socially isolated, only hanging out with fellow officers, and starting to drink more than casually.  During the summer of 2020, Mrs. Peterson noticed her husband’s mood would either be intense and angry, or he would be numb, void, and absent.  He was sleep deprived and anxious, overly protective, and easily upset over normal events or conversations.  Mrs. Peterson also testified that she did not think he realized the depth of his problems until her ultimatum during their vacation in March 2021, which she thought explained why he had not sought help earlier.

After the submission of post-hearing written closing arguments, the compensation judge issued his findings and order on June 28, 2023.  Relying upon the opinions of Dr. Cronin and Dr. Aleknavicius, he found that the employee suffered a compensable PTSD work injury, that he was entitled to the presumption of compensability, that the employer did not rebut the presumption, and that the employee continued to meet the diagnosis of PTSD under the DSM-5-TR.  Consequently, the compensation judge awarded temporary total disability (TTD) and temporary partial disability (TPD) benefits, a rehabilitation consultation, and various medical benefits.  In light of the determination that the employee had an ongoing PTSD diagnosis per the DSM-5-TR, the compensation judge did not make any findings on the alternative theory of whether the employee suffered a consequential mental health injury as a result of the PTSD diagnosis.  The compensation judge also found the employer put forth a frivolous denial of the employee’s claim until the receipt of Dr. Young’s report, and thereby awarded a 30 percent penalty to the employee on TTD benefits payable through the date of that report.

The employer appealed to this court.  Oral argument was held on January 8, 2024.  This court referred the matter back to the compensation judge to make further findings on the alternative issue of whether, if the employee no longer had PTSD, he has OSTD, and if so, whether the OSTD condition was a consequence of the PTSD condition.

On February 8, 2024, the compensation judge issued Findings on Referral.  He found that the opinions of Dr. Aleknavicius were more persuasive than those of Dr. Young and that the employee sustained a consequential mental health injury, specifically OSTD, as a result of his PTSD condition.  In his memorandum, he adopted the opinion of Dr. Aleknavicius that the employee’s persistent PTSD symptoms caused OSTD.  After receiving the referral findings, on March 14, 2024, this court issued an order accepting the additional findings of the compensation judge as part of the employer’s appeal and allowing the parties to submit briefs on issues raised by the additional findings.  This court received additional briefs from the parties, closed the record, and considered the entire record on appeal.

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 employer raises several arguments on appeal.  First, the employer argues that the compensation judge erred as a matter of law in finding the employee suffered from ongoing PTSD given that the medical experts all agreed the employee no longer met some of the PTSD criteria as set out in the DSM-5 or the DSM-5-TR.  Second, the employer asserts the compensation judge erred as matter of law in finding that the employee has a diagnosed mental health condition of OSTD as a consequence of his PTSD condition.  Third, the employer claims the compensation judge erred by imposing a penalty for a frivolous denial of primary liability.  We disagree and address each argument in turn.

In Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981), the Minnesota Supreme Court held that mental health injuries caused by mental work stimuli (mental/mental claims) are not compensable under the Workers’ Compensation Act (WCA), stating that the issue was a policy decision for the legislature to address.  In 2013, the Minnesota Legislature amended the WCA to allow claims for PTSD as an occupational disease, therefore allowing compensation for a PTSD mental/mental injury as the only exception to the Lockwood doctrine.  The amendment to the statute required that an employee’s PTSD diagnosis must be made by a licensed psychologist or psychiatrist using the criteria in the latest edition of the DSM.  See 2013 Minn. Laws ch. 70, art. 2, § 1 (amending Minn. Stat. § 176.011, subd. 15).   The statute was later amended to provide a presumption for first responders with dates of injury on or after January 1, 2019.  See 2018 Minn. Laws ch. 185, art. 5, § 1 (adding Minn. Stat. § 176.011, subd. 15(e)).  For a police officer diagnosed with PTSD, who had not been previously diagnosed with PTSD, the diagnosis is presumed to have been due to the officer’s employment.  Minn. Stat. § 176.011, subd. 15(e).

The employer argues substantial evidence does not support the compensation judge’s finding that the employee has PTSD under the DSM-5 or under the DSM-5-TR.^[6]  We are not persuaded.

After her May 2022 evaluation of the employee, Dr. Aleknavicius opined that as of May 2021, the employee had met the full criteria for PTSD according to the DSM-5, but that the mental health treatment he had received over the previous year appeared to have been beneficial in relieving the severity/frequency of some of his symptoms.  Dr. Aleknavicius found that the employee still met some, but not all, of the PTSD diagnostic criteria under the DSM-5 and that his “persisting symptoms continue to result in significant distress and impairment in his occupational and social functioning.”  (Ex. A.)  Specifically, she found that in May 2022 he still met the threshold for Criteria A and C, whereas he had previously met the threshold for Criteria A-H.  She explained that in the month leading up to her examination of the employee, he no longer had the frequency and severity of the symptoms to meet some of the B-E criteria, and thus Criteria F and G did not presently apply.  Dr. Aleknavicius also opined, “Although he does not meet the full criteria for PTSD according to the DSM-5 at this time, it is important to note that some people with PTSD experience long periods when their symptoms are less noticeable, followed by periods where they get significantly worse.”  (Id.)  Dr. Aleknavicius concluded that while the employee no longer met the DSM-5 criteria for a diagnosis of PTSD, he met the criteria for a diagnosis of OSTD.

At the hearing, Dr. Aleknavicius testified that per the DSM-5, the employee met the diagnostic criteria for PTSD in March through June 2021 when the employee was first seeing Mr. Weidner and when he was examined by Dr. Dahlstrom, and that the PTSD diagnosis was due to the trauma he experienced as a police officer for the employer.  She also testified that when he no longer met the diagnostic criteria for PTSD under the DSM-5, he met the criteria for OSTD, which was a direct consequence of his work-related PTSD condition.  Dr. Aleknavicius further testified that the most recent edition of the DSM, the DSM-5-TR, which was published in March 2022, changed the opinion she expressed in her written report.  Specifically, she testified that the employee did in fact have PTSD per the DSM-5-TR.  She stated that although the DSM-5-TR had the same diagnostic criteria for PTSD as the DSM-5, the additional text in DSM-5-TR clarified the application of the criteria for a PTSD diagnosis.  The DSM-5-TR specifically states in the diagnostic features part of the PTSD section:

According to Dr. Aleknavicius, the additional language in the DSM-5-TR explains that when Criteria B-E are met for one month or longer all at the same time, those criteria are considered met for the “lifetime” of the individual.  Under this clarification, Dr. Aleknavicius testified that the employee had a diagnosis of PTSD pursuant to the DSM-5-TR, as he had experienced several Criterion A events, he met Criteria B-E at the same time for over one month during the March-June 2021 time frame, and therefore met Criterion F.  In short, he had established the “lifetime” of Criteria B-E, and necessarily Criterion F as well.  Further, she opined that he continued to meet Criterion G, despite the improvements in the level of severity in some of the symptoms described in Criteria B-E.  Specifically, he had ongoing clinically significant impairment from those symptoms in his social, occupational, and parenting functions.  There was no other cause of the symptoms, thus Criterion H was met.  She reiterated that in addition to a PTSD diagnosis, the employee had a diagnosis of OSTD that was directly related to the underlying work-related PTSD diagnosis.

In contrast, Dr. Young opined that the employee did not meet the diagnostic criteria for PTSD and stated that the employee “has had some symptoms, past and present, that have benefited from treatment, but the evidence does not support that those symptoms have ever risen to the level of meeting full criteria for PTSD or other mental health disorders.”  (Ex. 1.)  Dr. Young opined that the employee met Criteria A and B, but not Criteria C, D, and E, and that consequently, Criteria F and G were inapplicable.  He did not address Criterion H.  Like Dr. Aleknavicius’ written report, Dr. Young’s written report relied upon the DSM-5.  In his testimony, Dr. Young disagreed with Dr. Aleknavicius and stated that there is no diagnosis of “lifetime” PTSD under the DSM-5-TR, but he offered no other interpretation of the new text.  According to Dr. Young, the PTSD diagnostic criteria under the DSM-5 and the DSM-5-TR, which are identical, are required to be met each time an evaluation is conducted, and the employee had not met the PTSD diagnostic criteria under either edition of the DSM at any time.

The employer contends the compensation judge erred as a matter of law in adopting Dr. Aleknavicius’ opinion because she considered the medical records and opinions of Dr. Dahlstrom, a medical doctor, and Mr. Weidner, a therapist, neither of whom are licensed psychiatrists nor psychologists.  Minn. Stat. § 176.011, subd. 15(d), provides that for the purposes of establishing a compensable mental health injury, only a licensed psychiatrist or psychologist may make a diagnosis of PTSD.  In this case, the evidence presented to the compensation judge included opinions from two licensed psychologists, Dr. Cronin and Dr. Aleknavicius, and one licensed psychiatrist, Dr. Thackaberry, who all found supporting evidence in the records of Dr. Dahlstrom and Mr. Weidner which influenced their respective opinions that the employee had work-related PTSD diagnosis.  The compensation judge noted that Dr. Aleknavicius’ opinions were more persuasive in part because they were consistent with Mr. Weidner’s assessments.  The employer seems to argue that the only medical evidence that a licensed psychiatrist or psychologist can rely upon to form an opinion regarding a potential PTSD diagnosis is that from another licensed psychiatrist or psychologist.  We disagree.  The fact that Dr. Aleknavicius, Dr. Cronin, and Dr. Thackaberry considered this other evidence in forming their respective opinions does not render their opinions unreliable or inadmissible and the compensation judge’s consideration of this other evidence in determining the persuasiveness of the opinions of Dr. Cronin and Dr. Aleknavicius was not an error of law.

The compensation judge, as trier of fact, generally has discretion to choose between competing and conflicting medical experts’ reports and opinions.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  A compensation judge’s choice between adequately founded expert opinions regarding a PTSD diagnosis based upon the latest edition of the DSM is within that discretion under Nord.  See Gianotti v. Indep. Sch. Dist. No. 152, 889 N.W.2d 796, 803, 77 W.C. D. 117, 126 (Minn. 2017); Ruether v. State of Minn., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1123-24 (Minn. 1990).  As the Minnesota Supreme Court has noted, the DSM was developed for medical professionals, rather than court or legal professionals, and a court should not apply a “legalistic analysis” of the appropriate edition of the DSM in reviewing the medical evidence.  See Smith v. Carver Cnty., 931 N.W.2d 390, 397 (Minn. 2019).  In that vein, we have reviewed both editions of the DSM at issue and we agree with Dr. Aleknavicius and Dr. Young that both editions contain identical criteria for diagnosing PTSD.  Dr. Aleknavicius, however, interpreted the new text contained in the DSM-5-TR as meaning that once Criteria B-E are met for 30 consecutive days or more, all at the same time, and therefore Criterion F is also met, then the employee has met those criteria for his “lifetime.”

The compensation judge did not err in relying upon Dr. Aleknavicius’ interpretation of the text in applying the PTSD criteria.  This court’s affirmance of the compensation judge’s acceptance of this interpretation is consistent with the supreme court’s directives in Smith that medical diagnoses by medical experts are entitled to a presumption of validity and that the DSM is a guideline for medical professionals, “not a checklist for judges.”  Id. at 398.  The clarification provided by the text revision is also consistent with Criterion A, in that once a significant trauma is experienced, that criteria is also met for the person’s lifetime.  This interpretation also addresses the legal conundrum of whether employees can receive ongoing workers’ compensation benefits under circumstances such as those presented in this case, and as were noted in Chrz v. Mower Cnty., 986 N.W.2d 481 (Minn. 2023), where an employee’s PTSD has “improved” and is not currently meeting some or all of the Criteria B-E, but is still causing significant limitation of function to meet Criterion G.

The employer argues that the new language in the DSM-5-TR does not create a “lifetime” diagnosis of PTSD and that Dr. Aleknavicius’ interpretation would mean that any diagnosis of PTSD is a permanent diagnosis.  We disagree.

First, the employer’s argument would require this court to interpret the DSM-5-TR.  As the supreme court instructed in Smith, we leave the interpretation of the DSM to the medical experts.  In Tea v. Ramsey Cnty., 5 N.W.3d 114 (Minn. 2024), the supreme court noted that under Smith, compensation judges are not precluded from reviewing the criteria of the DSM when considering which competing expert opinion is most persuasive and credible, but are precluded from independently interpreting the DSM to make their own diagnoses of injured workers.  However, the supreme court clarified that “[w]here the compensation judge is asked to determine which of two or more expert opinions is most credible and persuasive, the [compensation] judge may consider all the evidence before them—including the DSM criteria.”  Id. at 122.   Here, Dr. Aleknavicius offered an interpretation of the meaning of the additional text in the DSM-5-TR.  Dr. Young disagreed with this interpretation but offered no other interpretation.  The compensation judge resolved that dispute by finding Dr. Aleknavicius’ opinion more persuasive.  Doing so was not legal error and was supported by substantial evidence. 

Second, we note that while the compensation judge discussed Dr. Aleknavicius’ opinion as referring to a lifetime diagnosis, the compensation judge did not make a finding that the employee has a diagnosis of lifetime PTSD or that the PTSD diagnosis is permanent.  Rather, the evidence supports the compensation judge’s finding that the employee has met the criteria for a PTSD diagnosis based on Dr. Aleknavicius’ opinion that Criteria B-E are met for this employee’s lifetime, and that Criteria A and F are therefore also met for his lifetime.  Not requiring an employee to prove some of the criteria for a PTSD diagnosis on an ongoing basis does not render the diagnosis permanent because the employee must prove that Criteria G and H, the criteria that describe significant impairment of functioning and the lack of another cause, are still met in order to prove a current PTSD diagnosis.

Here, Dr. Aleknavicius testified that despite some improvement in the employee’s symptoms, they were still significant enough to impair his functioning to the degree necessary to meet Criterion G.  She further testified that there was no substantial cause of the employee’s PTSD diagnosis other than his many work-related traumatic experiences.  We note Dr. Young did not proffer another cause of the employee’s symptoms, regardless of diagnostic label.  Per Dr. Aleknavicius’ opinion, the employee has currently met each criterion of PTSD under the DSM-5-TR.  As substantial evidence supports the compensation judge’s finding that the employee has a current PTSD diagnosis based on the DSM-5-TR, the most recently published edition of the DSM, we affirm.

The compensation judge found that the employee suffers from OSTD as a consequence of his PTSD condition based on the medical opinions of Dr. Aleknavicius.  (Finding 2, Findings on Referral.).  The employer contends that the compensation judge erred as a matter of law because neither the statute nor caselaw provides that a mental injury consequential to a PTSD injury is compensable.  

Dr. Aleknavicius opined that under the DSM-5 the employee initially suffered from PTSD.  As the employee’s symptoms improved, she opined that his condition became OSTD, a subset of PTSD.  At the hearing, Dr. Aleknavicius opined that the employee still had PTSD, because despite the improvement in his symptoms due to treatment, he still met the diagnostic criteria for PTSD based on her interpretation of the DSM-5-TR.  She further testified that the employee had OSTD in addition to PTSD.^[7]  The compensation judge adopted the opinions of Dr. Aleknavicius as credible and persuasive and found that the employee’s persistent PTSD symptoms caused his OSTD.  (Finding 34c, Findings and Order; Finding 2, Findings on Referral.)  For the reasons articulated in this decision, substantial evidence supports the compensation judge’s findings based on his choice of medical opinions in this regard.

As to compensability of a mental health condition that develops as a consequence of PTSD, that issue has not been decided by this court or by the Minnesota Supreme Court.  See Chrz, 986 N.W.2d at 486 n.2 (an employee who had a PTSD diagnosis per the DSM-5, but had improved enough such that he no longer met at least one of the criteria and had not raised a consequential injury claim, no longer had a compensable claim); see also Tea, 5 N.W.3d at 119 n.3 (noting that this court vacated a finding of a work-related mental/mental depression claim because it was not pled, and further noting that the issue of whether there was a consequential depression injury was not on appeal to the supreme court).  In this case, the employee raised the issue of whether an employee who has been diagnosed with a mental health condition as a consequence of a work-related PTSD injury continues to have a compensable injury.  If such a consequential injury is not compensable, then while his PTSD condition remains compensable, any further claims arising from the employee’s ongoing non-PTSD mental health condition would not be compensable per Chrz.

To address this issue here, we look to past Minnesota Supreme Court precedent.  While the only compensable mental/mental work injury under Minnesota law is PTSD, for many years the supreme court has held that physical/mental injuries^[8] and mental/physical injuries are compensable.  See Hartman v. Cold Spring Granite Co., 243 Minn. 264, 67 N.W.2d 656, 18 W.C.D. 206 (1954) (citing Welchin v. Fairmont Ry. Motors, 180 Minn. 411, 230 N.W.2d 897, 6 W.C.D. 218 (1930)); see also Aker v. State, Dept. of Nat. Res., 282 N.W.2d 533, 32 W.C.D. 50 (Minn. 1979).  The supreme court has also established that consequential injuries are compensable.  Eide v. Whirlpool Seeger Co., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961).  In a subsequent case, the supreme court stated that when a primary injury is compensable, the general rule is that “every natural consequence that flows from the injury” is compensable.  Gerhardt v. Welch, 267 Minn. 206, 209, 125 N.W.2d 721, 723, 23 W.C.D. 108, 112 (1964) (citing language from 1 Larson, [Workers’] Compensation Law, § 13).  Consequential injuries are compensable and have been for over 60 years.  Wallace v. Judd Brown Constr. Co., 269 Minn. 455, 131 N.W.2d 540, 23 W.C.D. 362 (1964) (the natural consequence rule is based on concepts of direct and natural results as noted in 1 Larson, [Workers’] Compensation Law, § 13); see also Nelsen v. Am. Lutheran Church, 420 N.W.2d 588, 40 W.C.D. 849 (Minn. 1988); Gaspers v. Minneapolis Elec. Steel Castings Co., 290 N.W.2d 743, 32 W.C.D. 266 (Minn. 1979); Andeen v. Emmaus Nursing Home, 256 N.W.2d 290, 30 W.C.D. 269 (Minn. 1977) (aggravations of an employee’s compensable injury by ordinary physical activities were natural consequences flowing from that injury).  This court has consistently followed the Minnesota Supreme Court caselaw in this regard.  See Stevens-Stevenson v. Greater Lake Country Food, No. WC13-5547 (W.C.C.A. June 4, 2013) (work-related ankle injury caused a consequential injury to the employee’s hips and low back); see also Norgren v. Aramark, 68 W.C.D. 607 (W.C.C.A. 2008), summarily aff’d (Minn. Jan. 28, 2009); Pickar v. Coates Plaza Hotel, 68 W.C.D. 177 (W.C.C.A. 2008) (an employee’s surgery for a work-related knee injury caused low blood pressure resulting in a consequential left eye injury); Weston v. Univ. of Minn./Duluth, slip op. (W.C.C.A. May 20, 1999).

The employer argues that other than injuries involving PTSD conditions, mental/mental injuries are not compensable, whether direct or consequential, per Lockwood.  They assert that there must be a physical component of an employee’s claim, either a physical injury or a physical consequence, for compensability.  Further, the employer argues that had the legislature meant to do so, the statute would have included language stating that mental injuries consequential to PTSD are compensable.  Because the statute does not expressly include compensability of consequential mental health conditions arising from PTSD, the employer asserts that such injuries were intentionally excluded.^[9]  The employer also points out that, for some occupational diseases, the legislature specifically allows for compensability for the underlying disease and also its “sequel,” which implies that the legislature chose not to make any sequel of PTSD conditions compensable.  See e.g., Minn. Stat. § 176.011, subd. 15(b) (disease of myocarditis, coronary sclerosis, pneumonia, or its sequel are presumptively considered to be an occupational disease in some professions).

Yet, as noted above, compensability of consequential injuries has long been recognized.  See e.g., Rohr v. Knutson Constr. Co., 305 Minn. 26, 232 N.W.2d 233, 28 W.C.D. 23 (1975) (an employee in a “weakened” state due to a work injury and subsequent events result in the need for additional medical care, the care is compensable as due to a consequential injury).  Where an underlying work injury is compensable, medical conditions consequential to that injury are also compensable.  In this case, it was reasonable for the compensation judge to find that the employee’s OSTD condition, which consequentially arose from his compensable occupational injury of PTSD, to be compensable.  The finding is supported by substantial evidence and is consistent with the WCA and with supreme court caselaw.  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 a compensable medical condition as an incident of the occupational disease).  Once an employee has established a compensable PTSD injury, any mental health condition substantially caused by, aggravated by, or accelerated by, the PTSD diagnosis, is also compensable as a consequential injury.

The employer argues there was no frivolous denial of primary liability as a matter of fact and law and that the award of penalties was clearly erroneous.  We are not convinced.

Minn. Stat. § 176.225, subd. 1(1), provides that a compensation judge shall award, in addition to compensation already awarded, up to a 30 percent penalty when an employer has frivolously denied a claim.  The determination of whether a penalty should be imposed under Minn. Stat. § 176.225 is within the discretion of the compensation judge.  Carroll v. Allina Mercy Hosp., 74 W.C.D. 567, 578 (W.C.C.A. 2014).  Under Minn. Stat. § 176.011, subd. 15(e), where a police officer who is diagnosed with PTSD and had not been previously diagnosed with PTSD, the diagnosis is presumed to have been caused by the police officer’s employment.  The statute continues:

Here, the employee notified the employer of his PTSD diagnosis after receiving Dr. Cronin’s report.  In doing so, the employee established all necessary elements for application of the presumption that his PTSD diagnosis was work related.  He was a first responder recognized by the statute, he had a diagnosis of PTSD from a licensed psychologist, and he had no prior diagnosis of PTSD.  The employer denied the claim in a primary liability determination, stating that the presumption did not apply, affirmatively alleging that the employee had a history of personal mental health conditions caused by personal stressors unrelated to his employment as a police officer or by stressors which are not “of the type that are recognized to be causative of PTSD under the [DSM].”  (Ex. P.)  The employer also stated that the employee’s alleged pre-existing mental health conditions were being further investigated.

The record on appeal shows that before the employee became a police officer, he underwent two separate pre-employment mental health examinations and no mental health conditions were identified.  Further, although Dr. Cronin’s report identified that the employee had previously seen a therapist, he was referencing the therapy the employee underwent with Dennis Conroy following a work-related altercation in 2002.  To the extent that Dr. Cronin’s report identified a “history of personal mental health counseling,” that history was clearly identified as related to a traumatic work-related experience, not a “personal” stressor.  In fact, after that incident, the employee was required to complete a fitness-for-duty evaluation, which also did not identify any mental health issues.  Moreover, the employer has presented no evidence of any investigation undertaken by the employer, after it received Dr. Cronin’s report or after it issued its primary denial of liability, of the employee’s alleged pre-existing mental health issues.^[10]

As to the employer’s allegation in the primary liability determination that the stressors identified by Dr. Cronin’s report, and recounted in this court’s opinion, were not of the type that could cause PTSD, this court will only state that the allegation lacks merit.

The employer did not have evidence to rebut the presumption of causation until Dr. Young’s report was obtained in March 2022.  See Juntunen v. Carlton Cnty., 982 N.W.2d 729 (Minn. 2022).  Consequently, the compensation judge did not err in finding the initial denial to be frivolous and did not abuse his discretion in awarding a 30 percent penalty on the TTD benefits awarded to the employee from the onset of the claim until the issuance of that report.  We therefore affirm the penalty award.

For all these reasons, we affirm the findings and order and findings on referral of the compensation judge.