MINNESOTA HAS GONE MENTAL-MENTAL NOW WHAT?

Transcription

1 MINNESOTA HAS GONE MENTAL-MENTAL NOW WHAT? Materials prepared by: Kalli Bennett Michael Courtney Pam Dodds Mackenzie Moy Joshua Steinbrecher Stephen Ward HEACOX, HARTMAN, KOSHMRL, COSGRIFF & JOHNSON 550 Hamm Building 408 St. Peter Street St. Paul, MN (651)

2 CHANGES TO MINNESOTA S LAW GOVERNING MENTAL/MENTAL CASES I. WORKERS COMPENSATION LAW PRIOR TO OCTOBER 1, 2013 A. COMPENSABLE INJURIES Prior to September 30, 2013, Minnesota was in the minority of those states requiring that a compensable work injury must have some type of physical component. Minnesota Statutes section , subdivision 1 (which remains unchanged) reads as follows: Every employer is liable for compensation according to the provisions of this chapter and is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence. The definition of personal injury was previously defined as an injury arising out of and in the course of employment and included a personal injury caused by an occupational disease. Minnesota Statutes section , subdivision 16. B. PSYCHOLOGICAL INJURIES Workers compensation claims involving psychological and mental issues were divided into three categories: (1) cases in which mental stimulus produced a physical injury; (2) cases in which physical stimulus produced a mental injury; and (3) cases in which mental stimulus produced a mental injury. The third category, commonly known as mental/mental, was the subject of a major change to the workers compensation law by the 2013 Minnesota Legislature. 1. Mental/Physical A mental/physical injury occurs when a work-related mental stress or stimulus produces an identifiable physical ailment. Johnson v. Paul's Auto & Truck Sales, Inc., 409 N.W.2d 506 (Minn. 1987). Workers' compensation claims involving mental problems are compensable in cases in which a mental stimulus produces a physical injury. The mental stress or stimulus does not need to be the sole cause of the physical injury, but it must be a substantial contributing factor to the resulting physical injury. Aker v. State Dep't of Natural Res., 282 N.W.2d 533 (Minn. 1979). A two-step test must be satisfied in order to prove that mental stress is the cause of the physical injury. The first step, medical causation, requires medical proof such as supporting medical records, reports, or medical testimony. The second step, legal causation, requires evidence that the mental stress is extreme or beyond the ordinary day-to-day stress to which all employees are exposed. 2

3 A mental/physical injury occurred when an employee suffered a fatal heart attack after removing badly decomposed bodies from a campsite. Aker. A police officer was subjected to beyond ordinary day-to-day stress, over a long period of time, and developed a stress-induced ulcer. The ulcer was compensable, but claims for stress-induced depression were denied. Egeland v. City of Minneapolis, 344 N.W.2d 597 (Minn. 1984). Under the prior law, to be compensable, physical ailments were separate from and independent of the employee s emotional condition. An employee s tics, tremors, and cramps were not found to be independently treatable physical injuries but, rather, inseparable manifestations of the employee s personality disorder. Because the physical symptoms were inseparable from the mental stress, they were not compensable. Johnson v. Paul's Auto & Truck Sales, Inc., 409 N.W.2d 506 (Minn. 1987). 2. Physical/Mental A physical/mental injury occurs when a work-related physical injury aggravates, accelerates, or precipitates mental injury. Hartman v. Cold Spring Granite Co., 67 N.W.2d 656 (1954). As with mental/physical injuries, the physical injury need only be a substantial contributing factor to the mental injury. The cumulative effect of work-related back injuries (physical) resulted in a compensable case of traumatic neurosis (mental). Hartman. Where an employee suffered work-related tinnitus (physical) resulting in depression (mental), the injury was compensable. Dotolo v. FMC Corp., 375 N.W.2d 25 (Minn Physical/mental cases required no significant level of physical injury. In Mitchell v. White Castle Sys., Inc., 290 N.W.2d 753 (Minn. 1980), a slap in the face resulted in no organic injury but did result in traumatic neurosis, which was compensable. Contrast Mitchell with Dunn v. U.S. West, slip op. (WCCA Mar. 21, 1995), where an employee was the subject of an attempted robbery at the store where she worked. Although the employee s hand had been painfully grasped behind her, there was no actual injury, and the employee s claim for posttraumatic stress disorder (PTSD) was denied. In Jaakola v. Olympic Steel, 56 W.C.D. 238 (1996), an employee witnessed the injury and subsequent death of a coworker. The employee s claim was denied due to the lack of physical injury to the claimant. 3. Mental/Mental A mental/mental injury occurs when a work-related mental stress or stimulus produces only mental injury. The Minnesota Supreme Court noted in Lockwood v. Indep. Sch. Dist. No. 877, 312 N.W.2d 924 (Minn. 1981) that in the absence of evidence that the legislature intended to provide coverage for such an injury, a mental injury caused by job-related stress without physical trauma was not compensable. In Lockwood, a high school principal suffered a disabling mental injury caused by work-related stress. Over the course of three years, the principal cited increased nervousness and stress 3

4 associated with expanded job duties. This stress resulted in an increased temper, which affected his treatment of students. Ultimately, the principal took an extended medical leave of absence. The compensation judge and the WCCA held that the principal s diagnosed manic depressive disorder arose out of and in the course of his employment and was, therefore, compensable. The Minnesota Supreme Court reversed, holding that the claim was not compensable because the legislature had probably not intended such claims to be included under the Workers Compensation Act. The Court stated: The issue in this case involves a policy determination which we believe should be presented to the legislature as the appropriate policy-making body. If [the legislature] wishes to extend workers compensation coverage to mental disability caused by workrelated mental stress without physical trauma, it is free to articulate that intent clearly. In the absence of a clearly expressed legislative intent on the issue, however, we will not hold such disability to be compensable. 4. Erosion of Lockwood In recent years, the authority of Lockwood has been challenged. In Dodds v. Red Lake School District ISD 38, File No , settled before it was heard on appeal, a teacher witnessed a school shooting in which five of her students were killed. While the teacher sustained no physical injury, the compensation judge held that the circuitry of her brain had been altered with abnormal chemical and electrical impulses. The alteration was, therefore, physical. The decision of the compensation judge would not have changed the status of mental/mental claims (a physical change was found), but the case may have established a unique mental/physical claim previously categorized as a mental/mental claim. If the WCCA had accepted the argument that the brain was physically altered with the abnormal chemical and electrical impulses, the claim would have resulted from a mental/physical injury. In Schuette v. City of Hutchinson, slip op. (WCCA April 18, 2013), a police officer was diagnosed with PTSD when he witnessed the death of a child he knew, after trying to resuscitate her. While the WCCA held in accord with Lockwood that the PTSD was not compensable, the court suggested that the methodology behind Lockwood was no longer viable. This case is on appeal at the Minnesota Supreme Court at the time of publication of this material. II. MAY 2013 LEGISLATIVE CHANGES CONCERNING COMPENSABILITY OF MENTAL-MENTAL INJURIES A. STATUTORY CHANGES In the wake of the Lockwood doctrine s recent attempted erosion, as highlighted by Dodds and Schuette, the Minnesota legislature passed a bill that significantly expanded the traditional definition of a compensable work injury. Minn. Stat , subd. 16 (2013), was amended to include, within the definition of personal injury, the diagnosis of post-traumatic stress disorder (PTSD) by a licensed psychiatrist or psychologist. 4

5 Personal Injury means any mental impairment as defined in subdivision 15, paragraph (d), or physical injury arising out of or in the course of employment.... Physical stimulus resulting in mental injury and mental stimulus resulting in physical injury shall remain compensable. Mental impairment is not considered a compensable injury if it results from a disciplinary action, work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. Minn. Stat , subdivision 15 (a), was amended to read: Occupational disease means a mental impairment as defined in paragraph (d) or physical disease arising out of and in the course of employment peculiar to the occupation in which the employee is engaged and due to causes in excess of the hazards ordinary of employment.... Physical stimulus resulting in mental injury and mental stimulus resulting in physical injury shall remain compensable. Mental impairment is not considered a disease if it results from a disciplinary action work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. Minn. Stat , subdivision 15 (d) defines mental impairment as: [A] diagnosis of post-traumatic stress disorder by a licensed psychiatrist or psychologist. For the purpose of this chapter, "post-traumatic stress disorder" means the condition as described in the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association. Governor Mark Dayton signed the proposed legislation on May 16, The expanded definition of personal injury will apply to all claims occurring on or after October 1, Work-related mental/mental injuries are now compensable in Minnesota. B. COMPENSABLE AND NON-COMPENSABLE PSYCHOLOGICAL INJURIES With the recent expansion of the law, the legislature has specified the type of psychological injury or mental impairment which is now compensable: [A] diagnosis of post-traumatic stress disorder by a licensed psychiatrist or psychologist... as described in the most recently published edition of the Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association. The statute requires that the diagnosis of PTSD come directly from a licensed psychiatrist or psychologist. PTSD diagnosed by other health professionals (family doctors, nurses, physicians assistants, etc.) will not be considered compensable under the workers compensation statute. The recent changes to the definition of and diagnosis of PTSD, contained in the most recent publication of the Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM), are discussed below; but, first, it is helpful to consider the types of claims which were not recognized 5

6 by the legislature and which remain non-compensable. Mental stimulus or stress leading to a mental injury characterized or diagnosed as depression, anxiety, excessive rumination, phobia, or seasonal affective disorder, etc. will remain non-compensable. Employers remain free to evaluate, transfer, discipline or terminate an employee without fear of workers compensation liability. So long as the employer acts in good faith, the new law does nothing to strip away this essential autonomy. The legislature did not create a new category of defenses and/or procedures applicable to mentalmental injuries compensable after October 1, The legislature, instead, inserted identical language into the statutory definitions of personal injury and occupational disease to include diagnosed PTSD. This action preserved the defenses of intentional third-party acts and preexisting conditions, which will likely be considerations in many PTSD claims. Although a diagnosis of PTSD resulting solely from a mental stimulus will now be compensable, employers and insurers must still rely on their traditional defenses. The statute of limitations and notice defenses may prove significant in mental-mental cases when employees delay treatment. Although our society has become more sensitive to issues of mental health, mental illness is still a difficult diagnosis for some patients. It will be important to determine the initial onset date of PTSD and the subsequent statutory notice date. PTSD claims may fall into a number of sub-categories including a traumatic event caused by a third-party. With all PTSD claims, it will be essential to determine the pre-existing mental history. In the case of an intentional third-party act, it will be important to determine whether the third party act arose out of the employee s employment. If the intentional third party s act is based upon the assailant s own reasons or animosity, and if the act is not directed at an employee as an employee, the claimed injury may not be compensable. Where an assailant was motivated by personal animosity towards the victim arising from circumstances wholly unconnected to the employment, the claim was not compensable. Parker v. Tharp, 409 N.W.2d 915 (Minn. Ct. App. 1987). The new definition notes that repeated exposure to aversive details of traumatic event(s) can be a trigger for the disorder. As a result, we can also expect Gillette PTSD claims, and detailed histories will be necessary to defend against such claims. Claimed PTSD injuries should also not be viewed as automatically compensable simply because such an injury is, by its nature, evidenced by non-objective, self-reported symptoms. Nor should claimed PTSD injuries be dismissed as frivolous or unsubstantiated for similar reasons. Rather, as with all work-related injuries, and care must be taken to thoroughly investigate each claim and identify and assert applicable defenses. C. AN UNCERTAIN FUTURE The recent legislation will offer challenges to the defense of workers compensation claims. There will be growing pains for all parties as the compensation judges interpret those changes to 6

7 the statute. The development of the law should be guided by the specific and limiting language employed by the legislature. The legislature tied the definition of a compensable PTSD injury inextricably to the most recent publication of the DSM, currently DSM-5, published in May Compensability for PTSD injuries may change with any definitional or diagnostic changes in subsequent versions of the DSM. Because DSM-5 was so recently published, there may be disagreement over the elements constituting a PTSD diagnosis between and among both medical professionals and attorneys. Based on a claimed lack of validity resulting from a failure to support the manual s results and conclusions by objective scientific measure, the National Institute of Mental Health has withdrawn its support of DSM-5. As a result, DSM-5 has the potential to create a battle of the experts with regard to PTSD claims. III. HISTORY OF PTSD DIAGNOSIS A. HISTORICAL BACKGROUND Although traumatic stressors have always been part of the human experience, PTSD was not included in any DSM until Even then, the diagnosis was controversial. The authors of the first set of criteria found themselves addressing a new concept: an ideological agent outside the individual (a traumatic event), rather than an inherent individual weakness (a traumatic neurosis), giving rise to a mental health diagnosis. Even with that important distinction being made, PTSD was considered a fear-based anxiety disorder, and its diagnostic criteria continued to be grouped with such conditions as acute stress disorder, panic disorder, and obsessive compulsive disorder. The earliest concept of a PTSD traumatic stressor was a catastrophic event considered to be outside the range of the usual human experience. The types of events contemplated included war, torture, rape, and atomic bombs. Natural disasters, such as volcanos and earthquakes, and manmade disasters, such as airplane crashes and factory explosions, were also contemplated. These stressors were intended to differentiate from the normal stressors of ordinary life, such as divorce, financial reversal, or illness. The thought was that most people are able to cope with ordinary stressors but not everyone is able to cope with extreme trauma. B. DSM IV Although not apparent when PTSD was first proposed as a diagnosis in 1980, clinicians and researchers subsequently realized that the occurrence of PTSD is relatively common. In response to this development, the DSM IV revised the PTSD diagnostic criteria. In DSM IV, the traumatic events criterion required that two elements be satisfied: 1. The first element, exposure, was generally described as a person experiencing, witnessing, or being confronted with an event that 7

8 involved actual threatened death or serious injury, or a threat to the physical integrity of self or others; and 2. The person s response had to involve intense fear, helplessness, or horror. (At the time of the DSM IV, the person s immediate behavioral response was thought to be useful in predicting the onset of PTSD). DSM IV s criteria for PTSD included the presence of symptoms in each of three symptomatic cluster groups. Those behavioral criteria included intrusive recollection, such as re-experiencing the event in images, thoughts or perceptions, dreaming about the event, having flashback episodes, or experiencing intense psychological distress or physiological activity on exposure to cues reminiscent of an aspect of the traumatic event. One such intrusive recollection by the person satisfied that criterion. The second symptom cluster group involved avoidant and numbing behaviors. Avoidant behavior included efforts to avoid thoughts, feelings or conversation associated with the trauma or activities, places or people that aroused recognitions of the trauma. Numbing behaviors included the inability to recall an important aspect of the trauma, markedly diminished interest in significant activities, detachment or estrangement, a diminished affect, and a sense of foreboding, as in unable to expect to have ordinary experiences such as career, marriage, or children. Three or more of these behaviors were thought to constitute persistent avoidance or numbing symptoms. The third symptom cluster dealt with symptoms of arousal. Arousal behaviors included sleeplessness, irritability or angry outbursts, concentration issues, hypervigilance, and an exaggerated startle response. To satisfy the arousal criterion, the person had to exhibit two or more of these behaviors. The employee s symptoms in each of the criteria categories had to persist for more than one month. Last, the disturbance had to cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Acute PTSD could be diagnosed if the duration of symptoms lasted three months. Chronic PTSD could be diagnosed if symptoms persisted beyond three months. A diagnosis could note with delayed onset if, at least six months after the stressor, the employee had satisfied all criteria. C. PTSD AND DSM IV IN WORKERS COMPENSATION CASES Prior to the current statutory changes and DSM V, DSM IV PTSD issues arose in workers compensation cases. In Polecheck v. State of Minnesota, Department of Natural Resources, 8

9 2009 WL (Minn. W.C. Ct. Appeals Oct. 5, 2009), an employee, while taking part in defensive skills training, sustained an injury to his left shoulder when struck by his instructor. The employee underwent two shoulder surgeries that did not improve his functional ability or symptoms. The employee described shoulder pain and problems causing sleeplessness, lack of concentration, violent nightmares, dreams about being attacked or having to defend someone, a feeling of helplessness and hopelessness, behavior that was short-tempered, and irritability with low self-esteem. Although the employee had many of the behaviors seen in response to PTSD, the diagnostic issue was the traumatic stressor. Treating physician, Dr. Sivak, opined the DSM IV criteria were clearly satisfied stating: In terms of the traumatic event being significant enough, although the patient didn t die and no one was killed, by definition from the DSM IV criteria 1A, the person experienced, witnessed or else confronted with an event or events that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others. Certainly, the patient s physical integrity was threatened and this was considered a serious injury. He could not move his shoulder well. He was helpless. It is compelling that he did not see the blow the coming, it was unexpected, he went to his knees, he has blocked out part of the trauma and his very identity was in his physical prowess and now his left shoulder was injured in a place where you have to show extreme levels of prowess and even in a situation of fighting this certainly has fulfilled criteria 1A. Independent medical examiner, Dr. Rauenhorst, found the physical trauma the employee described insufficient to provoke PTSD. Specifically, Dr. Rauenhorst stated: In discussing his injury with me, Mr. Polecheck showed virtually no affect. The affect which he showed during the interview, i.e., more intense emotion, feelings of anxiety, indications of tenseness, etc. were present when discussing his financial concerns, his concerns about the future, and not about the injury itself. Dr. Rauenhorst also noted that it was unlikely that the employee would have been able to continue with training that day, much less over in ensuing days, had he experienced an event and emotional reaction like that described in the DSM IV. The compensation judge found that the employee did not have PTSD and that the work injury was not a substantial contributing factor to the development of the depression, anxiety and adjustment disorder the employee did have. The compensation judge determined that it was the employee s loss of his dream job as a game warden that significantly contributed to the development of employee s mental health issues. On October 5, 2009, the WCCA found there was substantial evidence in the record to support the employee s claim of injury-induced PTSD, but it also found substantial evidence to support the judge s reliance on Dr. Rauenhorst s opinion that the employee didn t have the intense emotional reaction to the event required for the stressor criteria under the DSM IV. The WCCA affirmed 9

10 the compensation judge s decision that the employee s shoulder injury was not a substantial contributing cause to the development of the psychological problems from which the employee suffered. Note that the reaction criterion that provided the basis for a finding that the employee did not have PTSD under DSM IV has undergone notable change in the new PTSD section of DSM IV. IV. PTSD AS DEFINED IN DSM V The workers compensation act has been amended to allow mental/mental claims. A claim may be compensable if a licensed psychiatrist or psychologist, utilizing the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, diagnoses the employee with posttraumatic stress disorder. Minnesota Statute , subd. 16 (2013); Minnesota Statute , Subd. 15 (d). A. NEW DEFINITION OF PTSD On May 18, 2013, DSM V was published by the American Psychiatric Association. This latest edition dramatically altered the definition of post-traumatic stress disorder and how PTSD is diagnosed. Under the new definition, a person has post-traumatic stress disorder if the following criteria are met: 1. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways: a. Directly experiencing the traumatic event(s); b. Witnessing, in person, the event(s) as it occurred to others; c. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental; and/or d. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g. first responders collecting human remains; police officers repeatedly exposed to details of child abuse.). Note: this does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related. 2. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic events occurred: a. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); 10

11 b. Recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s); c. Dissociative reactions (e.g. flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.); d. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); and/or e. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s). 3. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one or both of the following: a. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); and/or b. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s). 4. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: a. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs); b. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., I am bad, No one can be trusted, The world is completely dangerous, My whole nervous system is permanently ruined ); c. Persistent distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others; d. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); 11

12 e. Markedly diminished interest or participation in significant activities; f. Feelings of detachment or estrangement from others; and/or g. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings). 5. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: a. Irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; b. Reckless or self-destructive behavior; c. Hypervigilance; d. Exaggerated startle response; e. Problems with concentration; and/or f. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). 6. Duration of disturbance (Criteria B, C, D, and E) is more than one month. 7. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. 8. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5 th ed. 2013). B. THE EVOLVING DEFINITION OF PTSD There are significant changes in the definition of post-traumatic stress disorder from DSM IV to DSM V. In DSM V, the stress inducing event is more expressly defined. The requirement that a person s response to the event involve intense fear, helplessness, or horror has been removed, is now listed under Criteria D negative alterations in cognitions and mood, and is no longer a required response for the diagnosis of post-traumatic stress disorder. 12

13 An employee s bad day at work will not result in a workers compensation claim for mental injury. Minnesota Statute , subd. 16 specifically excludes disciplinary actions, work evaluations, job transfers, layoffs, demotions, promotions, terminations, retirement, or similar actions taken in good faith by the employer as the triggering action for post-traumatic stress. In addition, as DSM V makes clear, an individual s response to a traumatic event is not static. It differs over time and from person to person. A person s reaction to trauma may initially meet the diagnostic criteria for other disorders, which remain non-compensable. Months or years after a traumatic event, however, an individual may, for the first time, meet the criteria for posttraumatic stress disorder. Individuals with post-traumatic stress disorder are 80% more likely than those without PTSD to have symptoms that meet diagnostic criteria for at least one other mental disorder, such as depression, bipolar, anxiety, or substance use disorders. While the legislature narrowly defined a single type of mental injury as compensable under the workers compensation act, in practice that narrow definition may prove problematic. Resources: Matthew J. Friedman, PTSD History and Overview, United States Department of Veterans Affairs, available at American Psychiatric Association, Posttraumatic Stress Disorder, available at sheet.pdf Russell, Laura, Posttraumatic Stress Disorder DSM-IV Diagnosis and Criteria, available at American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5 th ed. 2013)