Opinion
W.C. Nos. 4-533-653, 4-611-317, 4-520-870.
August 22, 2005.
FINAL ORDER
The claimant, who is the decedent's surviving spouse, seeks review of an order of Administrative Law Judge Harr (ALJ) which denied her claims for permanent disability and dependent death benefits. We affirm.
The decedent suffered a back injury in 1979 that was surgically treated. In 2000 and 2001 the decedent reinjured his back while employed as a building maintenance worker. An MRI revealed a severe degenerative disk disease and EMG studies of the lower extremities were normal with no radiculopathy. The decedent received conservative treatment including epidural steroid injections (ESI) for pain relief.
The decedent returned to light duty work with the employer. However, his employment was terminated on October 26, 2001. Thereafter the decedent attempted his own business, which failed within 4 months, and the decedent was never reemployed.
In December 2001 Dr. Gellrick reported that a new MRI showed no new disc herniation or worsening of the degenerative disc disease. He also opined the disc herniation at L4-5 had decreased due to the ESI therapy. Consequently, Dr. Gellrick opined the decedent was not a surgical candidate. Dr. Hemler and Dr. Sabin agreed. In April 2002, Dr. Gellrick opined the claimant was at maximum medical improvement for the physical injuries. However, Dr. Gellrick continued to prescribe physical therapy, a TENS unit and Darvocet for pain management.
The claimant began psychological treatment with Dr. Krause in 2002. Dr. Krause continued to treat the decedent through February 24, 2004, the day before the decedent died as a result of a self-inflicted drug and alcohol overdose. Dr. Krause opined that the suicide was primarily caused by the industrial injuries, "with some contribution from the emotional upset related to the ex-wife and daughter."
The ALJ rejected the opinions of Dr. Krause and credited the contrary opinions of Dr. Zaki. The ALJ found the decedent had a long standing dependence on prescription medication for treatment of anxiety and became distressed when the treating physician attempted to reduce that medication. The ALJ also found the decedent was a binge drinker, with a history of drug abuse which pre-dated the industrial injury. But the ALJ found the drug and alcohol used was not worsened by the industrial injuries. Further, the ALJ found the decedent had ongoing stress in his personal life associated with child custody issues.
Based on these findings, the ALJ determined the claimant failed to sustain her burden to prove the industrial injuries were the cause of the decedent's suicide. Instead, the ALJ found that the decedent's propensity for abusing prescription drugs and alcohol and pre-existing psychological problems more probably prevented the decedent from recovering from his physical injuries and that a worsening of the pre-existing conditions was the primary causes of the decedent's chronic pain and mental derangement. (Finding of Fact 55). Therefore, the ALJ denied the claim for dependent death benefits.
The ALJ also found the claimant failed to prove the industrial injuries would have precluded the decedent from earning wages after maximum medical improvement. Consequently, the ALJ also denied the request for permanent total disability (PTD) benefits.
I.
On review the claimant contends the ALJ's reasons for discrediting Dr. Krause's testimony are not supported by the record. We disagree.
Death benefits are payable where the death is proximately caused by an industrial injury. Section 8-42-115, C.R.S. 2004; Johnson v. Industrial Commission, 366 P.2d 865 (Colo. 1961); Trudeau v. Umetco Minerals Corp., W.C. No. 4-537-010 (August 21, 2003). This standard requires the claimant to prove a direct causal relationship between the industrial injury and the death. See Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986); Trudeau v. Umetco Minerals Corp., supra.
An intentional self-inflicted injury or suicide is considered an independent non-industrial intervening event which severs the causal connection between the injury and the death. Section 8-41-301(1)(c), C.R.S. 2004. However, a narrow exception exists where the industrial injury causes a deranged mental condition and the deranged mental condition is the proximate cause of the worker's suicidal death. See Jakco Painting Contractors v. Industrial Commission, 702 P.2d 755 (Colo.App. 1985); Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994).
Generally, the issue of whether the industrial injury caused such a "deranged mental condition" is one of fact for determination by the ALJ. Dependable Cleaners v. Vasquez, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2004. In applying this standard, we must view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Under this standard, the ALJ is the final arbiter of conflicting expert medical testimony and we may not interfere with the ALJ's credibility determinations, "except in extreme circumstances" where the testimony of a witness is overwhelmingly rebutted by hard, certain evidence to the contrary. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
We also note the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Neither is the ALJ required to expressly discuss every piece of evidence before rejecting it as unpersuasive. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Rather, it is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The ALJ's decision not to rely on Dr. Krause's opinions was based on his finding that the April 23, 2004 report in which Dr. Krause opined the suicide was primarily related to his workers' compensation injuries failed to discuss:
"decedent's long-standing, preexisting bipolar condition, his addiction to Xanax, his binge drinking, his prior suicide attempts, his hospitalizations at Porter, and his inability to stop using Xanax, Darvocet, and other medications prescribed by Dr. Krause. Dr. Krause further failed to discuss decedent's magnification of his physical symptoms as documented by Dr. Gellrick." (Finding of Fact 55).
We have reviewed the April 23 report. The report documents Dr. Krause's observations of the decedent between September 2003 and February 2004. However, the report does not address the decedent's medical history before 2003. ( See Respondents' Hearing Exhibit QQQQ). Further, Dr. Krause admitted he was not aware of the decedent's suicide attempt 10 years earlier. (Tr. p. 37).
In addition, Dr. Krause's own testimony supports the ALJ's finding that Dr. Krause was "essentially unaware of medical reports documenting the course of decedent's medical treatment" for the industrial injuries. (Finding of Fact 58). Dr. Krause admitted he reviewed only one report from Dr. Gellrick, and had only a "brief" discharge note concerning the decent's hospitalization in April 2002. (Tr. pp. 46, 47). Further, Dr. Krause also admitted he did not have any records concerning the claimant's preexisting psychological issues and did not fully read Dr. Friedman's 1996 report which stated the decedent had been accused of sexually assaulting his daughter. (Tr. pp. 54). Under these circumstances, we cannot say the ALJ erred in failing to credit the opinions of Dr. Krause.
In this regard we reject the claimant's contention the ALJ erroneously admitted Dr. Friedman's 1996 report because it contains contained hearsay within hearsay. The Colorado rules of evidence (CRE) apply to workers' compensation hearings. Section 8-43-210 C.R.S. 2004. CRE 801 defines "hearsay" as a statement made by a person outside the hearing and offered to prove the truth of a matter asserted in the statement. Hearsay evidence is not admissible unless it falls under one of the exceptions stated in the CRE.
The disputed report appears to be a child custody evaluation which was prepared in a domestic relations action between the decedent and his ex-wife. Although the respondents offered the 1996 report as evidence the decedent suffered psychological stress when a minor child had accused him of sexual misconduct, (Tr. pp. 27-28; 33), the ALJ apparently did not admit the report for that purpose. Instead, the ALJ admitted the report as evidence Dr. Krause did not have a thorough awareness of the decedent's psychological history. (Finding of Fact 59). Under these circumstances, the fact that the report contains hearsay did not preclude its admission.
Moreover, although Dr. Krause did not consider the claimant's April 2002 hospitalization to be the result of a "suicide attempt," the ALJ's reasonable inference to the contrary is supported by the Emergency Room report of Dr. Zaki dated April 2, 2002. ( See Tr. p. 45; Respondents' Hearing Exhibit KK); see also Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess specialized knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it). Similarly, the ALJ could also reasonably infer from Dr. Levy's reports dated April 25, 2002, and May 1, 2000, and Dr. Zaki's May 9, 2002, report that the decedent had some sort of bipolar disorder even though no formal diagnosis was issued prior to the decedent's suicide. ( See Respondents' Hearing Exhibits QQ, SS, TT).
Insofar as the ALJ also found Dr. Krause's opinions were undermined by evidence the decedent magnified his symptoms from the industrial injuries, there are multiple reports by Dr. Gellrick and at least one report from MaryElen Shearn to support the ALJ's finding ( See Respondents' Hearing Exhibit WW, III, VV). The claimant is correct that the June 20, 2002 report was authored by Shearn, not Dr. Sabin as stated in Finding of Fact 25. However, because the ALJ explicitly quoted Shearn he apparently found Shearn's opinions persuasive. Therefore, the reference to Dr. Sabin was a harmless error. See § 8-43-310 C.R.S. 2004.
We conclude the claimant's further arguments on these issues do not establish reversible error. Further, we may not substitute our judgment for that of the ALJ concerning the sufficiency and weight of the evidence and decline the claimant's request that we reweigh the evidence on review. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Consequently, we cannot say the ALJ erroneously found the claimant failed to prove the decedent's deranged mental condition was caused by the industrial injury.
II.
Next, the claimant argues the ALJ erroneously denied PTD benefits. Again we disagree.
Under the applicable law, a claimant is permanently and totally disabled if he is unable "to earn any wages in the same or other employment." Section 8-4-201(16.5)(a), C.R.S. 2004. The overall objective of this standard is to determine whether, in view of all of these factors, employment is "reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, 955 P.2d at 550, 558 (Colo. 1998).
Contrary to the claimant's contention, the pertinent issue before the ALJ was not whether the industrial aggravation of the decedent's pre-existing psychological problems was compensable. Instead, the issue was whether the decedent's permanent physical or mental impairment from the industrial injuries would have rendered him unable to earn wages.
The ALJ's finding that the claimant was capable of earning wages is supported by medical evidence the decedent's back pain was substantially reduced by the ESI treatment, and Dr. Gellrick's opinion the claimant was capable of light duty employment (July 24, 2005 Exhibit 7). In addition the vocational rehabilitation assessment of Diane Koons, (Respondents' Hearing Exhibit SSSS) which the ALJ expressly credited, supports the ALJ's denial of PTD benefits. Therefore, it is immaterial the record contains evidence which, if credited, might support a contrary result. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
III.
Finally, the claimant argues the ALJ erroneously failed to address the issue of permanent partial disability (PPD) benefits. We reject this argument.
The claimant's application for hearing and prehearing position statement endorsed the issue of PPD benefits. ( See Claimant's Hearing Exhibit packet). However, at the commencement of the hearing the claimant's attorney stated that the issues for adjudication were survivor's benefits and PTD benefits. (Tr. p. 6). Furthermore, the claimant's post-hearing position statement does not request an award of PPD benefits. Under these circumstances, the record supports the ALJ's implicit determination that the claimant withdrew the issue of PPD benefits from adjudication.
IT IS THEREFORE ORDERED that the ALJ's order dated February 10, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________ David Cain ___________________ Kathy E. Dean Kathy Dureno, Arvada, CO, Lourdes Gutierrez, Sempra Energy Solutions, Los Angeles, CA, Monica Reince, Liberty Mutual Insurance Company, Irving, TX, Martin J. Linnet, Esq., Denver, CO, (For Claimant).Keith E. Mottram, Esq., Denver, CO, (For Respondents).