Smith v. Carver County

Smith v. Carver County, No. WC18-6180 (W.C.C.A. January 4, 2019)

The employee in this case filed a Claim Petition for workers’ compensation benefits based on PTSD caused by his work as a deputy sheriff for Carver County from July of 2006 through June of 2016. Specifically, the employee claimed that his PTSD was due to 16 specific traumatic events which he encountered as part of his employment as a deputy sheriff. Those traumatic events included, among others, several fatal car accidents where the employee had to removed deceased victims from vehicles, suicides, home fires resulting in death, the death of a two-year-old child caused by choking, discovery of a decomposing body, unsuccessful attempts to resuscitate a three-year-old gunshot victim, and stepping over a dying young woman in order to check on other victims from a motor vehicle accident.

On July 30, 2016, the employee was seen by licensed psychologist, Dr. Michael Keller who issued a 16 page report wherein he ultimately diagnosed the employee with PTSD, major depressive disorder, and anxiety disorder. Dr. Keller determined that the employee met all criteria under the DSM-5 for PTSD and that his diagnoses were directly related to the employee’s law enforcement work and work-related traumatic exposures.

The employer and insurer obtained an IME report from Dr. Paul Arbisi who concluded that the employee did not meet the DSM-5 criteria for PTSD. He diagnosed the employee with somatic symptom disorder and adjustment disorder with mixed anxiety and depressed mood. The employer and insurer thus denied the claim for PTSD.

Compensation Judge Danny Kelly found Dr. Keller’s opinions were not persuasive and found Dr. Arbisi’s opinions were persuasive and adopted Dr. Arbisi’s opinion. Thus, the compensation judge found that the employee failed to establish a compensable claim for PTSD. The employee appealed.

On appeal, the WCCA reversed the compensation judge’s finding that Dr. Arbisi’s opinion was persuasive and adopted and remanded the claim for a determination of whether Dr. Keller’s diagnosis of PTSD complies with the DSM-5 criteria and if so, what benefits should be paid to the employee.

In coming to that conclusion, the WCCA noted that Dr. Arbisi modified the criteria in DSM-5 or used the DSM-5 criteria as a guide and added his own explanation or interpretation, which is not allowed under the Statute.

Specifically, the WCCA noted “Criterion A requires exposure to or experience of an actual or threatened death, sexual violence, or serious injury.” Dr. Arbisi agreed that the employee has been exposed to traumatic events but did not find those incidents to be “sufficiently traumatic” since the employee wasn’t personal involved and was “responding as part of his job.” The WCCA notes that the DSM-5 does not require personal involvement nor does it exclude particular occupations.

Next, the WCCA noted that “Criterion B requires intrusive symptoms, such as recurrent involuntary distressing memories, recurrent distressing dreams, or other reactions such as flashbacks.” Dr. Arbisi had asked the employee to recount incidents the employee had been involved with which he considered to be “the worst” and the employee recounted two such incidents. Dr. Arbisi then acknowledged that the employee reported nightmares, flashbacks, etc. but found those symptoms didn’t satisfy criterion B because they weren’t specific to the two “worst” incidents described by the employee and because the symptoms hadn’t occurred within 30 days preceding his evaluation. The WCCA again noted that those limitations imposed by Dr. Arbisi aren’t part of the DSM-5.

Lastly, the WCCA noted that “Criterion C requires persistent avoidance of stimuli associated with the traumatic events.” Dr. Arbisi found that criterion not met because the employee continued to associate with former co-workers and because the employee indicated he wanted to start a new career in the insurance industry and he would continue to be exposed to police reports in that role. Again, the WCCA noted that the SDM-5 language “does not require total avoidance as interpreted by Dr. Arbisi.”

Due to the modifications and additional limitations imposed on the DSM-5 criteria by Dr. Arbisi, the WCCA disagreed that his opinion was persuasive as Minn. Stat. 176.011 subd. 15(d) requires that all 8 criteria of the DSM-5 must be met to prove up a compensable PTSD claim.