CLAIM NO. E802410
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JUNE 24, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GEORGE L. TAYLOR, Attorney at Law, El Dorado, Arkansas.
Respondent represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part; affirmed as modified in part.
[1] OPINION AND ORDER[2] The claimant appeals and the respondent cross-appeals an opinion and order filed by the administrative law judge on September 10, 1998. In that opinion and order, the administrative law judge found that the claimant proved by a preponderance of the evidence that she sustained a compensable mental injury. The administrative law judge found that the claimant is entitled to reasonably necessary medical treatment during a one-month period from February 9, 1998 through March 9, 1998, and the administrative law judge found that the claimant failed to establish by a preponderance of the evidence that she is entitled to any period of temporary disability compensation. [3] After conducting a de novo review of the entire record, we find that the claimant proved by a preponderance of the evidence that she sustained a compensable mental injury, and we find that the claimant failed to establish by a preponderance of the evidence that she is entitled to any period of temporary disability compensation as a result of her compensable mental injury. Therefore, we find that the administrative law judge’s decision in these regards must be affirmed. In addition, we find that the claimant is entitled to reasonably necessary medical treatment for her condition, including counseling beginning on February 9, 1998, through July 31, 1998, and continuing to a date yet to be determined. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed as modified. [4] The claimant was employed by the respondent as a night clerk at a convenience store. On the night of Wednesday, January 14, 1998, the claimant was the victim of an armed robbery during the course of her employment. While locking the store the robber surprised her from behind, forced his hand over her mouth and told her not to scream. The assailant directed her to a dark exterior corner by prodding her in the back with his gun. Using his body he pressed her into the corner. Claimant became afraid that she would be subjected to a sexual assault due to the physical contact forced on her by the robber. A second man approached and demanded her purse and her keys. While the second assailant fumbled with the lock on her car the first man continued to press his body against her and forced her into the corner of the building. At the sound of an approaching vehicle she looked up at which point the robber placed his gun against her temple and ordered her to look down again. [5] When her car had been unlocked the assailants changed places and the second man took her back inside the store. Her assailant demanded that she turn the alarm off. When she had done that he made her open the safe. She was able to retrieve only $300.00, the remainder of the funds had been deposited in an inaccessible floor safe. When the robber found out that the claimant could not access the rest of the money he threatened her again. The claimant passed the money box to the robber and begged him to believe her. She then put her hands over her face, turned away from the robber and began to pray silently for her life. The claimant heard her assailant leave the store and looked around in time to see the tail lights of her car as it left the parking lot. The claimant called the police and stayed on the phone until the first policeman arrived. [6] On Thursday, the claimant went to the police station to inquire about her stolen car and to find out whether the robbers had been apprehended. The claimant later spent the afternoon at the police station looking at pictures. The claimant was scheduled to work that evening but stopped by the store and talked to Carol Dison, her supervisor. The two agreed that the claimant would not work that night. [7] On Friday, the claimant retrieved her stolen car and was at home when she received a telephone call from Carol Dison asking whether the claimant could work that evening. The claimant recalled the context of that discussion, and a subsequent discussion that day when the claimant terminated her employment as follows:
A. On Friday when I got home that afternoon, my husband had left and I was there at the house, it was like 1:20 or something like that, and Carol Dison called me, which was my supervisor at Rainbow Food Mart, and she was wanting to know if I could come in, and I told her, I said, “No, Carol, I just got home. First off, this is my scheduled day off, and then second, you know, I just got home from having to deal with my car being stolen and all of that. I have been to the police station and the insurance company.” I said, “No, I can’t come in,” and then I also told her I had to also go back to the detectives, they wanted me to come back that afternoon, and so I told her, I said, “No, I can’t come in. I’m supposed to go back to the detective’s office sometime this afternoon around 4:00,” and I hung up on her, and then my husband got home that afternoon, come to the house to take me back up to the police station.
Q. Let me ask you a question there. Were you offended when she referred to these series of events as “that crap?”
A. Yes, sir, I was.
Q. Okay, go ahead.
[8] The claimant testified that she started having dreams about the armed robbery on the first night, and the claimant testified that she has dreamed about the robbery on at least two-thirds of the nights since then. [9] The claimant first sought psychological counseling at Neuropsychiatry Associates of South Arkansas on February 9, 1998. The claimant was subsequently diagnosed and treated for posttraumatic stress disorder. The claimant filed the present claim for disability compensation and medical benefits arising out of an alleged compensable mental injury. The respondents assert that the claimant did not sustain a compensable mental injury. [10] Since the claimant’s alleged compensable injury occurred after July 1, 1993, this claim is governed by the provisions of Act 796 of 1993. [11] A.C.A. § 11-9-102(5)(A)(iii) states that the definition of “compensable injury” includes “mental illness as set out in § 11-9-113.” Section 113 states:A. And my husband came home and I told him that Carol had called and was wanting me to come in and I told him what the conversation was about and I told her I couldn’t, I am having to deal with all of this, and she said, “How long will it take you to get through with that crap?” you know, and then she asked, “Could you come in like at 6:00” and I’m like, “No, I can’t,” you know, and he said, “You just call her back and tell her you won’t be in at all.” And so I did. I figured it would be best for them to find somebody else.
[12] Whether the claimant sustained a compensable mental injury is a question of fact which turns upon the testimony of Dr. Dr. Taryn Sue Van Gilder, Ph.D. Dr. Van Gilder testified in person at the hearing. Dr. Van Gilder is a clinical psychologist who first met with the claimant on February 16, 1998, over one month after claimant’s encounter at work with an armed robber. The record reflects that claimant was referred to Dr. Van Gilder’s partner, Dr. Chester Jenkins, by her attorney. Claimant met with Dr. Jenkins on February 9, 1998, and was thereafter referred to Dr. Van Gilder. [13] Dr. Van Gilder testified that she diagnosed claimant with posttraumatic stress disorder. Dr. Van Gilder described this disorder as:(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychologist or psychiatrist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
(b)(1) Notwithstanding any other provision of this chapter, where a claim is by reason of mental injury or illness, the employee shall be limited to twenty-six (26) weeks of disability benefits.
[14] When asked to describe claimant’s symptoms of the disorder, Dr. Van Gilder testified:. . . a reaction to a traumatic event that involves a variety of symptoms, some of which are fear and sense of helplessness and for re-experiencing the event, disruption in social or occupational functioning, variety of psychological responses.
[15] Since the parties stipulated that claimant was a victim of a crime of violence, the physical injury requirement for a mental illness is inapplicable. However, Sub-section (a)(2) requiring a diagnosis by a licensed psychiatrist or psychologist and requiring the diagnosis to meet the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental DisordersMs. Glass has experienced intrusive recollections of event, fear of the event as it is reoccurring; feeling like it is occurring in present; distressed at being exposed to similar events. For example, going into a situation, experience someone touching her in a way that is similar, psychological reactivity she described, feeling as if somebody was putting their hand over her mouth again, that her mouth would go numb; avoiding some activities that she previously engaged in and for fear of being hurt again; decreased interest in significant activities that she previously enjoyed; sleep difficulties; difficulty concentrating; hyperventilation; exaggerated startle response.
applies to all mental injuries or illnesses. [16] During the hearing, the parties agreed that those portions of the DSM-IV (the most current issue of the Diagnostic andStatistical Manual of Mental Disorders) which apply to Dr. Van Gilder’s diagnosis of posttraumatic stress disorder would be introduced into evidence by reference and may be referred to by the Administrative Law Judge. Counsel for respondent questioned Dr. Van Gilder extensively regarding her diagnosis of claimant’s condition. The diagnostic criteria for 309.81 posttraumatic stress disorder lists criteria as outlined in A through F. Each criteria in A through F has sub-parts requiring that one or more of the sub-parts to be present in order for the diagnosis to be made. These criteria are as follows:
A. The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was 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.
(2) the person’s response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganized or agitated behavior.
B. The traumatic event is persistently re-experienced in one (or more) of the following ways:
(1) recurrent and intrusive distressing recollections of the event, including images thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
(2) recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content.
(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children trauma-specific re-enactment may occur.
(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.
(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.
C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma.
(2) efforts to avoid activities, places, or people that arouse recollections of the trauma.
(3) inability to recall an important aspect of the trauma.
(4) markedly diminished interest or participation in significant activities.
(5) feeling of detachment or estrangement from others.
(6) restricted range of affect (e.g., unable to have loving feelings).
(7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span).
D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
(1) difficulty falling or staying asleep.
(2) irritability or outbursts of anger.
(3) difficulty concentrating.
(4) hypervigilance.
(5) exaggerated startle response.
[17] In the present claim, there is essentially no dispute that the claimant’s evidence satisfies Criteria A, B, C, D and F. However, the respondents and the dissent assert that the claimant’s symptoms regarding Criteria C.4 (markedly diminished interest or participation in significant activities) did not have a duration of “more than one month”, so that the claimant’s symptoms with regard to Criteria C.4 do not satisfy Criteria E. On that basis, the respondents assert that the diagnosis of post-traumatic stress disorder by Dr. Van Gilder and Dr. Jenkins does not satisfy the requirement of Ark. Code Ann. § 11-9-113(a)(2), that a diagnosis meets the criteria established in the most recent issue of the Diagnostic and Statistical Manualof Mental Disorders. [18] Dr. Van Gilder testified in relevant part as follows regarding Criteria C.4:E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.
F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important area of functioning.
Q. Another criteria or symptom is markedly diminished interest or participation in significant activities?
A. Uh-huh. (yes).
Q. Did you say that that was present?
A. She claimed that she was not wanting to leave the house at one point, especially at the very beginning; that she was not interested in doing some of the things that she used to be interested in.
Q. For how long was this going on?
A. I think that remitted pretty quickly. A month, maybe.
[19] When further questioned by respondents’ counsel, Dr. Van Gilder elaborated further as follows:Q. Yes, and one of those three, you said, the marked diminished — I’m sorry, what?
A. Interest in participation in significant events.
Q. That lasted for about a month?
[20] After reviewing the entire record, we find that the claimant’s diagnosis of posttraumatic stress disorder meets the requirement of Ark. Code Ann.§ 11-9-113(a)(2) for the following reasons. Initially, we note what appears to be some degree of ambiguity in the relevant Criteria (E) at issue. Specifically, we note that Criteria E does not explicitly indicate whether (1)every symptom in B, C, and D must be present for more than one month or (2) whether only some of the symptoms in each category must be present more than one month. Likewise, Criteria E is ambiguous as to whether the one-month criteria applies (1) if noA. That is correct, but we are talking about having symptoms remit as we are working on them.
Q. Right, but after about a month if that one goes away, then there are two or three that are present?
A. That’s not the way a diagnosis works. We are hoping to diminish the symptoms as you go along. If you want them all to stay present during treatment, then you are defeating the purpose of treatment.
Q. I understand, but the criteria at least requiring three of those to be present, that part of it was concluded in a month’s time?
A. If you are asking me what my diagnosis would be right now, it would be posttraumatic stress disorder in partial remission, so if you have some of the symptoms remitting as treatment progresses as it should be, otherwise you are wasting your time in treatment, then the symptoms will start going away. That doesn’t mean that the diagnosis goes away. [Emphasis added].
treatment is obtained or (2) also applies if the individual is
undergoing treatment. As to the second question, Dr. Van Gilder’s testimony cited above seems to indicate that the one-month criteria in E is not particularly useful if the patient has started treatment within one month of the symptom onset, as clearly occurred here. [21] As to the first question the respondents assert that every
symptom to establish B, C, and D must be present more than one month to establish a diagnosis of post-traumatic stress disorder syndrome. The respondents cite a sentence from page 424 of theDSM, which states:
[22] In assessing the respondents’ argument in this regard, we point out that the purpose of Criteria E is not to determine whether or not the patient has experienced a mental injury at all, but rather to aid the clinician in making a differential diagnosis between two very similar mental injuries. As explained on page 427 of the DSM:The full symptom picture must be present for more than one month (Criteria E). . .
[23] As we interpret the various relevant language, the DSMAcute Stress Disorder is distinguished from Posttraumatic Stress Disorder because the symptom pattern in Acute Stress Disorder must occur within 4 weeks of the traumatic event and resolve within that 4-week period. If the symptoms persist for more than 1 month and meet criteria for Posttraumatic Stress Disorder, the diagnosis is changed from Acute Stress Disorder to Posttraumatic Stress Disorder.
obviously requires some degree of medical judgment in determining whether the duration of a patients’s various symptoms supports a differential diagnosis of acute stress disorder versus posttraumatic stress disorder. Under the circumstances of the present case, Dr. Van Gilder (a psychologist) and Dr. Jenkins diagnosed posttraumatic stress disorder. Based on the purpose of Criteria E identified above, and in light of the need for some degree of medical judgment in applying Criteria E in making a differential diagnosis with Criteria E, we are inclined to accord great weight to the medical judgment of Dr. Van Gilder and Dr. Jenkins in assigning the claimant in this case a diagnosis of posttraumatic stress disorder syndrome (versus acute stress disorder). Therefore, on this record, we find that the claimant has established by a preponderance of the evidence the necessary requirements of Ark. Code Ann. § 11-9-113 to establish a compensable posttraumatic stress syndrome disorder. [24] In reaching our decision, we note that the dissent also questions Dr. Van Gilder’s testimony regarding the claimant’s having satisfied Criteria C.2 (avoid activities, places, or people that arouse recollections of the trauma). The dissent cites to evidence that the claimant (1) returned to the store after visiting with the police the day after the robbery and (2) returned to the store on one occasion to pick up her pay check, both before she was encouraged to return to the store by Dr. Van Gilder as treatment. In this regard, we note that the dissent’s argument assumes that a crime victim will experience an immediate
aversion to relevant activities, places and people if the victim develops posttraumatic stress disorder as a result of the crime. However, we respectfully point out that there is no evidence in the record that the symptoms of posttraumatic stress syndrome manifest immediately after the crime. Notably, the DSM states on page 426:
[25] Therefore, we find the dissent’s observation in this regard essentially irrelevant and inconsistent with the DSM itself, which indicates that a full symptom presentation does not necessarily manifest immediately. [26] As regards the claimant’s claim for reasonably necessary medical treatment, employers must promptly provide medical services which are reasonably necessary for treatment of compensable injuries. Ark. Code Ann. § 11-9-508 (a) (1987). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary for treatment of the compensable injury. Norma Beattyv. Ben Pearson, Inc., Full Workers’ Compensation Commission, Feb. 17, 1989 (Claim No. D612291). [27] In assessing whether a given medical procedure is reasonably necessary for treatment of the compensable injury, we analyze both the proposed procedure and the condition it is sought to remedy.Deborah Jones v. Seba, Inc., Full Workers’ Compensation Commission, Dec. 13, 1989, (Claim No. D511255). [28] In the present case, Dr. Van Gilder testified that she initially met with the claimant once per week and currently (as of July 3, 1998) met with the claimant every other week. Dr. Van Gilder testified that the claimant had made progress, but that the claimant was not symptom free as of the date of the hearing. Dr. Van Gilder testified at the hearing that she could not state a specific time frame when the claimant will no longer require professional services. [29] The administrative law judge found that the respondents were only liable for Dr. Van Gilder’s treatment for the one-month period from February 9, 1998 through March 9, 1998. The administrative law judge appears to have picked a March 9, 1998 cutoff, based on Dr. Van Gilder’s testimony that the claimant’s posttraumatic stress syndrome was in “partial remission” after approximately one month of treatment. However, in light of Dr. Van Gilder’s testimony that the claimant still required professional services for her condition as of July 31, 1998, we find that the administrative law judge’s decision must be affirmed as modified. Specifically, we find that the claimant proved by a preponderance of the evidence that she is entitled to the additional treatment rendered by Dr. Van Gilder through the date of the hearing and continuing to a date yet to be determined. [30] Temporary total disability is determined by the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that she is within her healing period and totally incapacitated to earn wages. Arkansas State Highway and Transportation Department v.Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that she is within her healing period and suffers only a decrease in her capacity to earn the wages that she was receiving at the time of the injury. Id. [31] In the present case, we find that the claimant has failed to establish by a preponderance of the credible evidence that she sustained any incapacity to earn after January 14, 1998. In reaching this conclusion, we note that the record indicates that the claimant was already looking for a new job when she first presented to Dr. Jenkins on February 9, 1998. Dr. Van Gilder testified that she understood that the claimant was looking for daytime work, although Dr. Van Gilder testified that the claimant and Dr. Van Gilder did not discuss the subject in depth. However, Dr. Van Gilder did testify that she felt the claimant “was not fit for working anywhere” when she first saw the claimant on February 16, 1998. [32] However, other than this single reference by Dr. Van Gilder to her observation on February 16, 1998, there is simply no medical evidence indicating that the claimant was incapacitated to work for any period before or after that date. Notably, the claimant terminated her employment with the respondent over a disagreement and at her husband’s suggestion. By February 9, 1998, the claimant was looking for daytime employment and has, in fact, accompanied her husband, an independent contractor, to some of his work sites. The claimant testified that she has applied at White’s Mobile Homes, Andy’s and Quality Lube. The claimant testified that she previously had been advised that she could have a job at Catfish Corner if she wanted one, and she acknowledged that she has not attempted to return to work there. On this record, we are constrained to find that the claimant has failed to prove that she has sustained an incapacity to earn for any identifiable period between January 14, 1998 and the date of the hearing held on July 31, 1998. [33] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the claimant proved by a preponderance of the evidence that she sustained a compensable mental injury, and we find that the claimant failed to establish by a preponderance of the evidence that she is entitled to any period of temporary disability compensation as a result of her compensable mental injury. Therefore, we find that the administrative law judge’s decision in these regards must be affirmed. In addition, we find that the claimant is entitled to reasonably necessary medical treatment for her condition, including counseling beginning on February 9, 1998, through July 31, 1998, and continuing to a date yet to be determined. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed as modified. [34] For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. §11-9-715 (Repl. 1996). [35] IT IS SO ORDERED. [36] _______________________________Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before symptoms appear. [Emphasis added]
ELDON F. COFFMAN, Chairman _______________________________ PAT WEST HUMPHREY, Commissioner [37] Commissioner Wilson dissents. [38] DISSENTING OPINION
[39] I must respectfully dissent from the majority’s opinion. Based upon my de novo review of the entire record, I find that claimant has failed to prove the compensability of her alleged mental injury by a preponderance of the evidence. Specifically, I find that claimant has failed to prove by a preponderance of the evidence that she sustained a compensable mental injury and that the diagnosis of such injury meets the criteria of a mental injury in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. [40] Whether claimant sustained a compensable mental injury is a question of fact which turns upon the testimony of Dr. Taryn Sue Van Gilder, Ph.D. Dr. Van Gilder is a clinical psychologist who first met with the claimant on February 16, 1998, over one month after claimant’s encounter at work with an armed robber. As noted by the majority claimant was referred to Dr. Van Gilder’s partner, Dr. Chester Jenkins, by claimant’s attorney. Claimant met with Dr. Jenkins on February 9, 1998, and was thereafter referred to Dr. Van Gilder. [41] On cross-examination of Dr. Van Gilder, counsel for respondent focused primarily on Section or Criteria C of the diagnosis for post traumatic stress disorder which is set forth in the majority opinion. When asked if claimant possessed a marked diminished interest in participation in significant activities which is sub-part 4 of Section C, Dr. Van Gilder stated:
[42] However, Dr. Van Gilder confirmed that this criteria “remitted pretty quickly” and stated that claimant may have had this “a month, maybe.” According to Dr. Van Gilder, of the seven criteria set forth in the majority opinion, claimant possibly possessed signs of Sub-criteria No. 2 “Efforts to avoid activities, places or people that arouse recollections of the trauma”; No. 4 “Markedly diminished interest or participation in significant activities”, and No. 6 “restricted range of effect”. Dr. Van Gilder testified that claimant clearly did not possess the other remaining sub-criteria set forth in No. 1, 3, 5, and 7. [43] With regard to Sub-criteria No. 4, a markedly diminished interest or participation in significant activities, Dr. Van Gilder testified that this symptom diminished rather quickly and may have lasted for “a month, maybe.” However, in order to confirm a diagnosis of post-traumatic stress disorder, Criteria E requires “duration of the disturbance, (symptoms in Criteria B, C and D) is more than one month.” [44] A review of Dr. Van Gilder’s testimony reveals that she could not confirm that claimant possessed at least three of the criteria outlined in Section C (the persistent avoidance of stimuli associated with a trauma) for the requisite time period of one month or more. Moreover, Dr. Jenkins’ notes were not introduced into evidence and Dr. Van Gilder did not offer any testimony with regard to any findings or diagnosis made by Dr. Jenkins. [45] It cannot be discerned from reviewing Dr. Van Gilder’s testimony whether this symptom of diminished interest or participation in significant activities was present when she first visited with claimant over one month after the precipitating event occurred. Dr. Van Gilder’s testimony regarding the duration of claimant’s markedly diminished interest or participation in significant activities is clearly equivocal. Ark. Code Ann. § 11-9-102(16)(B) provides that medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. Although Dr. Van Gilder testified that her diagnosis of post-traumatic stress disorder was made within a reasonable degree of medical certainty, her equivocation with regard to claimant’s possession of the symptoms necessary to meet this diagnosis underscores her testimony. Since Dr. Van Gilder was unable to testify with any certainty the length of time with which claimant possessed Criteria C, Sub-part 4, I cannot find that a definition of post-traumatic stress disorder which clearly required the existence or presence of all symptoms for more than a month was made within a reasonable degree of medical certainty. [46] I am not persuaded by the majority’s apparent discovery of an ambiguity regarding the relevant criteria for a diagnosis of post traumatic stress disorder. Criteria E specifically states: “Duration of the disturbance (symptoms in Criteria B, C, and D) is more than one month.” This provision is direct and unequivocal. If the disturbance identified in Criteria B, C, or D exists it must be present more than 1 month to meet the criteria of post-traumatic stress disorder. I cannot read any ambiguity into this pointed, clear, and concise statement. While Criteria E is intended to identify and differentiate between two similar mental injuries, neither claimant nor her psychologist contended that claimant suffered from the lesser of the two injuries. Furthermore, I see no ambiguity with the criteria for diagnosis whether treatment is obtained or not. Criteria E requires the full symptom picture be present for at least one month in duration. If through successful treatment one or more of the symptoms of disturbance have been eliminated and did not last the requisite duration, Criteria E has not been met. Treatment is intended to eliminate symptoms of mental illness. The elimination of a criteria precludes a finding of that the illness exists. [47] I further question the validity of Dr. Van Gilder’s diagnosis with regard to her finding of Criteria C, Sub-part 2. As demonstrated through the testimony of Carol Disan, Bobby Green, and Janice Louise Gold, claimant returned to the convenient store, the site of the traumatic event on numerous occasions, once in order to pick up her paycheck shortly after the robbery occurred, and on many other occasions in order to purchase beer. Claimant even testified that she returned to the store the day after the robbery to discuss her schedule. Claimant, in accordance with her treatment, did go back to the convenient store as evidenced by the testimony of Dr. Van Gilder and of claimant’s husband. However, claimant’s treatment had not begun when she returned to the store after visiting with the police about the robbery, or when she returned to pick up her paycheck. In my opinion, claimant’s actions of returning to the store calls into question the reliability of Dr. Van Gilder’s diagnosis, which relies upon claimant’s account that she intentionally made efforts to avoid activities, places or people that arouse recollections of the trauma. Dr. Van Gilder had no independent knowledge of whether claimant, in fact, avoided people, places or events that arouse recollection of the trauma. In order to make her diagnosis she had to ask claimant whether claimant experienced an aversion to such things. In this regard Dr. Van Gilder’s testimony reflects:She claimed she was not wanting to leave the house at one point, especially at the very beginning; that she was not interested in doing some of the things that she used to be interested in.
Q. One of the things that you stated was part of your diagnosis was that Ms. Glass was avoiding activities, places or people that arouse recollection of the trauma.
A. There was some avoidance of it, yes, particularly the evening events.
Q. If you were to find that she was going to a convenience store at night alone during the time that she is describing to you this avoidance, would that cause you to question your diagnosis?
A. If it was before we started to work, yes, our work together, yes; if it was after, no, because that was one of the tasks I had requested her to complete as part of her treatment.
Q. If she went to a convenience store on several occasions to buy beer at night by herself, would that cause you to question your diagnosis?
A. No, it wouldn’t cause me to question diagnosis.
Q. Let me ask: If she is going to these places regularly at night, the convenience store, then she is not avoiding a place or an activity that arouses recollection, isn’t that correct?
A. Well, again, part of our treatment was that she start doing some of these things. We talked about it.
Q. She started doing things because she was telling you, “I can’t do those things”?
A. Right.
Q. And if she is doing those things at the same time she is telling you she can’t do those things, then that makes your diagnosis inaccurate?
A. It could, if that’s part of it.
[48] As noted above claimant’s actions do not support Dr. Van Gilder’s understanding of avoidance. Consequently, I must question the reliability of information utilized by Dr. Van Gilder in making her diagnosis. In my opinion, Dr. Van Gilder’s diagnosis is based on information provided to her by claimant. This information has been shown to be inaccurate. The evidence reflects that claimant told Dr. Van Gilder that she avoid events and places that invoked recollection of the trauma. However, the evidence also reflects that even though claimant told Dr. Van Gilder of this avoidance, claimant did not in fact avoid either people or places concerning the robbery. In finding claimant’s history provided to Dr. Van Gilder to be inconsistent with claimant’s actions, I am not relying upon the timing of when the avoidance factor comes into consideration, but rather the inconsistency between claimant’s words and her actions. I simply am not persuaded to find that claimant exhibited symptoms of avoidance as the evidence places her squarely in the site of the robbery on numerous occasions both prior to and after treatment began. [49] Therefore, for those reasons set forth herein, I find that claimant has failed to prove by a preponderance of the evidence that she sustained a compensable mental injury. Specifically, I find that claimant has failed to establish by a preponderance of the evidence that the diagnosis of post-traumatic stress disorder as made by Dr. Van Gilder actually meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorder. Since I find that claimant has failed to establish the compensability of a mental injury, I find that claimant has failed to prove entitlement to any benefits, medical or otherwise. Therefore, I respectfully dissent from the majority opinion. [50] __________________________ MIKE WILSON, Commissioner