Wessel v. State, Dep’t of Human Services

Wessel v. State, Dep’t of Human Services., No. WC15-5789 (July 13, 2015)

This case arises out of a December 2012 Claim Petition in which the employee claimed entitlement to permanent total disability benefits from December 2006 to the present and continuing with an additional 2% permanent partial disability rating for the neck and 45% permanent partial disability rating for emotional disability.  In the Compensation Judge’s Findings on December 19, 2014 the Judge awarded the employee an additional 2% permanent partial disability rating for the neck but denied the permanent partial disability rating claim for emotional condition and as a result denied the permanent total disability benefits.

In Dec. 2006, the employee sustained an injury to her neck arising from her employment as a human services technician at a group home when she was assaulted by a male patient.  The male patient struck the employee several times in the head and grabbed her by the pony tail.  At the time of the injury, the employee was 29 years old.  The employer, the State of Minnesota, Dept. of Human Services, admitted liability for the neck injury and paid benefits including temporary total disability, temporary partial disability and medical expenses.  The employee eventually developed a pain disorder and dysthymia.  Multiple attempts to return to work were unsuccessful due to the employee’s chronic pain and post-traumatic stress flash backs, as well as depression.  After the employer denied liability for the psychological condition, a Compensation Judge found the employee to have a pain disorder and dysthymia and that the December 2006 incident was a substantial contributing factor to her psychological conditions.

In 2011, the parties came to a settlement which awarded the employee 10% permanent partial disability for her neck and stipulated that the employee did not meet permanent total disability, but the employee’s permanent total disability claim was left open.

A narrative report was issued in November 2012 by Dr. Cronin placing her with a 45% permanency rating for her psychological issues. The doctor also considered the employee to be permanently and totally disabled and not able to engage in any meaningful work.  The employee then continued psychological treatment.  The 45% permanency rating was restated again in Aug. 2013, however, it was noted that the had not yet reached MMI.  In March 2014, the doctor opined that the employee had reached MMI and restated his 45% impairment rating.  It was noted by a QRC, however, that during the treatment period the employee had become pregnant and stopped using prescription medications and stopped attending therapy which had been authorized by the employer.

At a hearing in Oct. 2014, a Compensation Judge awarded the employee the additional 2% PPD rating for her neck and determined that the permanency claim for her emotional condition was premature and denied her 45% permanent partial disability rating.  Because the employee did not have the requisite permanent partial disability rating of 17% as required by Statute, her claim for permanent partial disability was denied.

The WCCA looked at three separate issues on appeal.  The first was whether the Judge committed error of law when he failed to determine that the employee was at MMI from the work related physiological injuries.  Second, whether the Compensation Judge committed an error of law when he determined that the rating for permanent partial disability was premature for an employee who did not complete psychological treatment prior to reaching MMI.  And, third, whether the Compensation Judge erroneously denied permanent total disability benefits because the employee did not meet the threshold criteria identified in Minn. Stat. §176.101, subp. 5.

The WCCA affirmed the Compensation Judge’s Decision.  It’s noted that historically an injured employee is entitled to permanent total disability if they could not perform a substantial and material parts of some gainful workers occupation with reasonable continuity.  The Supreme Court in Schultz v. C. H. Peterson Construction Co. identified these factors to be considered when determining total disability measure: the physical condition against age, education, training experience and type of work available in the community.  Due to the employee’s age at the time of injury, she was required to prove that she had a 17% permanent partial disability rating the whole body to qualify for the permanent total disability.  The WCCA found that, based on the evidence presented, it was not unreasonable for the Judge to determine that absent the completion of a treatment plan that MMI was not ripe for adjudication and that without MMI it was premature to determine a permanency rating for the emotional condition.