Opinion
W.C. Nos. 4-385-490 4-728-064.
January 6, 2009.
ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated August 22, 2008 that found the claimant had failed to establish that she suffered a compensable mental impairment injury on June 21, 2007 or an aggravation of her 1998 worker's compensation admitted injury. We remand for determination of the claimant's right to penalties, medical benefits and change of physician involving her 1998 claim and otherwise affirm the order.
The claimant sustained a compensable lumbosacral strain as a result of a motor vehicle accident on June 26, 1998, which is identified as W.C. No. 4-385-490 (1998 claim). The claimant also claimed an injury on June 21, 2007 involving headaches, muscular pain in her shoulder, stomach upset, insomnia, depression and inability to concentrate because of alleged harassment by her supervisor. This claim is identified as W.C. No. 4-728-064 (2007 claim).
Regarding the 2007 claim, the ALJ found that the claimant had failed to establish by a preponderance of the evidence that she suffered a mental impairment from an accidental injury arising out of and in the course of her employment. The ALJ also found that the claimant failed to demonstrate by a preponderance of the evidence that a work-related mental impairment caused her to suffer an aggravation of her 1998 workers' compensation injury on June 21, 2007. The ALJ denied the claims for medical benefits, temporary total disability benefits and penalties.
I.
On appeal, the claimant contends that the order should be set aside because the ALJ incorrectly applied the restrictions found in the mental impairment statute to the claimant's case. The claimant argues that the ALJ erred in finding that the record reflects that any mental impairment the claimant suffered did not arise out of and in the course of employment because it resulted from a disciplinary action, work evaluation and other similar actions exercised in good faith by the employer. The claimant further argues that the restrictions in the mental impairment statute only apply to cases where there is no physical injury. The claimant contends that she was not only mentally injured but also physically hurt as a result of harassment from her supervisor. In our opinion the ALJ correctly applied § 8-41-301(2) C.R.S. 2008 to this case.
Section 8-41-301(2)(a), which was amended to its current form in 1999, provides as follows:
(2) (a) A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2), "mental impairment" means a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. A mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay-off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. The mental impairment that is the basis of the claim shall have arisen primarily from the claimant's then occupation and place of employment in order to be compensable.
Section 8-41-301(2)(a.5) also enacted in 1999, provides that:
For purposes of this subsection (2), "mental impairment" also includes a disability arising from an accidental physical injury that leads to a recognized permanent psychological disability.
The claimant, citing Oberle v. Industrial Claim Appeals Office, 919 P.2d 918, 919 (Colo.App. 1996), argues that the restrictions in the mental impairment statute only apply to cases where there is no physical injury. In Oberle the court ruled that the claimant's emotional injuries did not constitute mental impairment within meaning of the statute setting forth evidentiary requirements for mental impairment claims, due to the fact that the sexual assault of the claimant involved physical injury.
As we understand the claimant's argument the claimant contends that the mental impairment statute, § 8-41-301(2), does not apply here because the stress from her employment caused a physical injury in the form of physical components such as pain in her shoulders, upset stomach and insomnia. The claimant argues that physicians have diagnosed physical components in association with her mental distress. The claimant points to evidence showing that she had headaches, pain in her shoulders, upset stomach and insomnia, all of which she claims are symptoms of her mental distress.
However, after Oberle v. Industrial Claim Appeals Office was decided in 1996, the General Assembly amended the statute in 1999 by adding § 8-41-301(2)(a.5), which provides that the term "mental impairment" includes "a disability arising from an accidental physical injury that leads to a recognized permanent psychological disability." See 1999 Colo. Sess. Laws, Ch. 103 at 299. It follows that Oberle, which was decided under the predecessor statute, is not controlling concerning the distinction between permanent mental impairment caused by an emotional stimulus and mental impairment that is a consequence of a compensable physical injury for injuries after July 1, 1999. Briles v. Montrose Memorial Hospital, W. C. No. 4-522-095 (May 2, 2003).
The focus is now on the cause of the impairment and the mental impairment statute remains applicable where the stimulus was purely mental, even if the mental stimulus caused a mental impairment, which exhibited physiological symptoms or "injuries." Esser v. Industrial Claim Appeals Office, 8 P.3d 1218 (Colo.App. 2000); Hughes-Choyce v. The Childrens Hospital, W.C. No. 4-444-713 (October 24, 2002); affd sub nom. Hughes-Choyce v. Industrial Claim Appeals Office No. 02CA2274 (Colo.App. September 11, 2003) (not selected for publication). In Hughes-Choyce v. The Childrens Hospital, the Panel noted that the General Assembly did not intend to exempt cases from the reach of the mental impairment statute simply because the mental impairment causes some physiological manifestation or injury.
The claimant also argues that the ALJ erred in ruling that she does not have a permanent injury because she had not reached maximum medical improvement. We are not persuaded that the ALJ erred. We agree in general that once a claimant reaches maximum medical improvement, her disability becomes permanent, and permanent partial disability may be determined. Eastman Kodak Co. v. Industrial Commission, 725 P.2d 107 (Colo.App. 1986). However, compensability is a threshold requirement, which an injured employee must establish by a preponderance of the evidence before any compensation is awarded. See Faulkner v. Industrial Claim Appeals Office 12 P.3d 844 (Colo.App. 2000). Here, regarding the 2007 claim, the ALJ found that the claimant failed to demonstrate that she suffered a compensable mental impairment. We see no error in his ruling on the issue of the compensability of the 2007 claim.
II
The claimant next contends that the ALJ erred in finding that she had failed to demonstrate by a preponderance of the evidence that she suffered an aggravation of her 1998 workers' compensation injury as a result of work-related stress in 2007. The claimant again argues that the ALJ erred because he incorrectly applied the restrictions of the mental impairment statute to the claimant's case. This appears to be essentially the same argument made by claimant as outlined above and therefore we are not persuaded by it.
However, it appears that the claimant also contends that because she has had symptoms that have continued ever since the 1998 admitted accident and still requires treatment, she has demonstrated that she suffered an aggravation of her 1998 injury. In addition, as we read her brief, the claimant essentially argues that the ALJ did not address all of the evidence that she presented showing her continued need for medical treatment and evidence she presented to demonstrate that the employer acted in bad faith.
We are not persuaded that evidence of a continued need for medical treatment compels the conclusion that the claimant suffered a mental impairment as defined in § 8-41-301(2)(a) or that work-related stress in turn aggravated her 1998 injury. We first note that the ALJ specifically found that ALJ Felter, in an earlier order involving the 1998 claim, had previously awarded maintenance care after maximum medical improvement as recommended by Dr. Olsen. Therefore, evidence of continued need for medical care following her 1998 injury was expected. In addition, the claimant received a medical impairment rating of 26 percent of the whole person for the 1998 injury. Therefore, again it is expected that she would continue to have impairment.
In addition, the question of whether the claimant met her burden to prove a compensable injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ's determination if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. 2008. Under this standard, we must defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here the ALJ relied on the opinions of the respondents' medical experts in concluding that the claimant failed to establish by a preponderance of the evidence that she suffered a work-related permanent mental impairment. The record supports these findings. Dr. Bernton's Report, Exhibit B at 85-86, Dr. Gutterman's Report, Exhibit B at 95-97. The claimant points to other evidence of record to support her position. However, the existence of evidence which, if credited, might permit a contrary result affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Therefore, was are not persuaded that the ALJ erred in failing to find that she had demonstrated she suffered a compensable aggravation of her 1998 injury.
III.
The claimant next contends that the ALJ failed to resolve conflicts in the record. The claimant again argues that the ALJ incorrectly applied the restrictions of the mental impairment statute to the 2007 claim and again we are not persuaded that the ALJ incorrectly applied § 8-41-301(2) to this case. However, the claimant goes on to argue that the ALJ erred because in his order he "admitted" that he did not address every piece of evidence that might lead to a conflicting conclusion and had rejected evidence contrary to his specific findings as unpersuasive. We are not persuaded that the ALJ erred. As we read the ALJ's order, he was merely stating the oft-repeated rule that an ALJ must make specific findings only as to evidence found persuasive and determinative and is under no obligation to address every issue raised or evidence considered unpersuasive. See Kroupa v. Industrial Claim Appeals 53 P.3d 1192 (Colo.App. 2002); see also, Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The claimant further argues that she testified that she was not experiencing any problem in her life other than her anxiety and depression caused by her supervisor and the unwillingness of the administrator to allow her to switch to a different unit. The claimant argues that the psychiatric evaluation by the respondents' expert failed to reveal any other reason for the claimant's anxiety and depression. Therefore, the claimant contends that because the respondents failed to demonstrate an alternative cause of her problems her claim must be compensable. However, it was her burden to prove a compensable injury, not the burden of the respondents to disprove compensability. Section 8-43-201, C.R.S. 2008; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999).
The claimant cites a number of cases from other states. However, legislatures outside of Colorado have adopted a variety of different standards for determining the compensability of work-related mental disorders. We are not persuaded that these cases are instructive in the present case.
The claimant cites Colorado cases such as Holme, Roberts Owen v. Industrial Claim Appeals Office, 800 P.2d 1332 (Colo.App. 1990) (demotion); and City Market, Inc. v. Industrial Claim Appeals Office, 800 P.2d 1335 (Colo.App. 1990) (effect of supervisor's sexual advances) relating to work-related mental stress for the proposition that harassment by a supervisor can form the basis of a compensable claim. We do not question this general proposition.
However, the claimant contends that negative comments in her evaluation made by her supervisor and the employer's refusal to allow the claimant to transfer to a different unit compel a finding that the actions of the employer were done in bad faith. We are not persuaded that the evidence compels a finding that the employer acted in bad faith.
The question of whether a disciplinary action, work evaluation, job transfer, layoff, demotion, promotion, termination, retirement, or similar action is taken in good faith depends upon whether the action was reasonable under an objective standard. Rendon v. United Airlines, W.C. No. 3-369-472 (October 14, 1993), partially set aside on other grounds, 881 P.2d 482 (Colo.App. 1994). Whether such actions are objectively reasonable is a question of fact to be determined by examining the surrounding facts and circumstances. Holme, Roberts Owen v. Industrial Claim Appeals Office, supra.
As noted above because these issues are factual in nature, we must uphold the ALJ's findings if supported by substantial evidence in the record. This standard of review requires us to view the evidence in the light most favorable to the prevailing party and to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Section 8-43-301(8).
Here substantial evidence supports the ALJ's determinations that the employer's actions were objectively reasonable and, hence, taken in good faith. The ALJ made the following pertinent findings of fact, all in our opinion supported by the record. The claimant's contention that she suffered from a mental impairment is predicated on her dissatisfaction with her supervisor, the denial of her transfer request, a written reprimand and disappointment with her performance reviews. Tr. (5/1/2008) at 18, 42-47. The claimant challenged the employer's actions through a review process and her claims were ultimately dismissed. Exhibit C at 410-15, 319-26. The claimant subsequently pursued an action under the ADA and obtained a report from Dr. Ammirato stating that the prospect of returning to work and facing the harassment of her supervisor caused her to suffer from anxiety and depression. Exhibit B at 110. The employer considered the claimant's ADA request and ultimately determined that a transfer to a different supervisor did not constitute a reasonable accommodation under the ADA and that the claimant was not disabled. Exhibit C at 297-98, 291-93. The employer ultimately terminated the claimant from employment. Tr. (7/11/2008) at 21-22.
In addition, the ALJ relied on the opinions of the employer's experts. The ALJ found persuasive Dr. Bernton's opinion that the claimant did not suffer any impairment in 2007 or a worsening of her 1998 claim as a result of her employment with the employer. Exhibit B at 85-86; Bernton Depo. at 21-22. Further the ALJ found persuasive Dr. Gutterman's opinion that the claimant did not sustain a permanent mental impairment as a result of employment with the City. Exhibit B at 95-97; Gutterman Depo. at 18; Tr. (7/11/2008) at 52, 80. Dr. Gutterman concluded that most employees do not respond in the fashion that the patient responded to her supervisor and to the various circumstances that she described. Exhibit B at 96. The ALJ concluded that the record reflects that any mental impairment that the claimant suffered did not arise out of and in the course of employment because it resulted from a disciplinary action, work evaluation, and other similar actions exercised in good faith by the employer.
In our view, there is substantial evidence in the record that supports the ALJ's determination. The claimant essentially requests that we reweigh the evidence on review. We have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, supra; Rockwell International v. Turnbull, supra. We have reviewed the claimant's additional arguments on compensability and they do not alter our conclusions.
IV.
The claimant further contends that the ALJ did not "have the jurisdiction" to consolidate the 1998 claim with the 2007 claim. We are not persuaded that the ALJ was without authority to consider both claims together.
The claimant filed a motion requesting that the 1998 claim and the 2007 claim be consolidated. The notice of hearing suggests that initially only the 1998 claim was set for hearing. However, the claimant filed a motion to add the issue of compensability, disfigurement and temporary total disability benefits as issues for determination and the respondents objected. An order was issued by ALJ Broniak on January 8, 2008 in which the claimant's motion to consolidate was denied, but the claimant's motion to add the issue of temporary total disability benefits and disfigurement was granted. The motion to add the issue of compensability was found to be moot because the issue had already been endorsed by the respondents. At a subsequent prehearing conference held before Prehearing ALJ McBride both the 1998 claim and the 2007 claim were identified as subjects of the prehearing. The Prehearing ALJ further noted that the issue of whether the claimant sustained a compensable work injury in 2007 was endorsed for the upcoming hearing. The claimant did not object or attempt to appeal this order. Therefore we see no error in the ALJ's consideration of both the 1998 claim and the 2007 claim at the hearing.
Moreover, at the hearings held on these matters on May 1, 2008 the claimant outlined her request for benefits on both the 1998 claim and the 2007 claim. Tr. (5/1/2008) at 17-19. Further, the ALJ indicated that both the claims were before him and the claimant did not object to this statement of the issues for hearing. Tr. (5/1/2008) at 3. Therefore, in our view the claimant consented to both claims being heard. See Cody v. Fraser, 122 Colo. 252, 222 P.2d 422 (1950); Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, Colo. App. No. 91CA1247, March 26, 1992 (not selected for publication) (issue of causation tried by consent). In addition, the claimant may not now object to both claims having been heard at the same time inasmuch as it was she who requested consolidation of the claims for hearing. See Horton v. Suthers, 43 P.3d 611 (Colo. 2002) (party may not complain on appeal of an error that she has invited or injected into the case); Andrade v. Industrial Claim Appeals Office 121 P.3d 328 (Colo.App. 2005).
V.
The claimant contends that she was denied due process of law in the 1998 claim. As we understand her argument she contends that the ALJ made no ruling on issues she had identified as issues to be resolved at the hearing. These issues were all related to her 1998 claim and involved maintenance medical benefits, change of physician and penalties. We remand for determination on the 1998 claim of the claimant's right to maintenance medical benefits, penalties and change of physician.
It appears from one part of the claimant's Post Hearing Brief that the claimant only sought medical benefits for psychological treatment. The claimant requested reimbursement for co-payments made to doctors for psychological treatment from July 2007 and forward. In addition, she requested reimbursement to Aetna for psychological treatment and continued psychological treatment with Dr. Ammirato.
In regard to psychological treatment related to the 1998 claim, the ALJ found, and we affirm his determination, that the claimant had failed to demonstrate that a work-related mental impairment caused her to suffer an aggravation of her 1998 workers' compensation injury. In regards to the 2007 claim, the ALJ found, and we affirm his determination, that the claimant failed to demonstrate that she suffered a compensable mental impairment. Therefore, because compensability is a threshold issue for determining respondents' liability for any benefits we perceive no denial of due process in the ALJ's denying the claimant's request for all medical benefits related to the 2007 claim and denying any request for psychological treatment related to the 1998 claim.
However, it appears from another part of the claimant's post hearing brief that she was seeking reimbursement on the 1998 claim for maintenance care in the form of physical therapy and other types of medical treatment not limited to psychological treatment. It therefore appears that the claimant may have sought maintenance medical benefits for more than psychological treatment related to the 1998 claim. Here the ALJ only determined that she did not suffer a work-related mental impairment as an aggravation of her 1998 claim.
The ALJ did note that ALJ Felter had, in an order involving the 1998 claim, previously awarded maintenance care after maximum medical improvement as recommended by Dr. Olsen. The ALJ here found that after the claimant achieved maximum medical improvement involving the 1998 claim, she subsequently did not seek recommended medical treatment from Dr. Olsen or any other authorized medical provider. Instead, the ALJ found that the claimant obtained treatment from a number of personal physicians for a variety of medical problems from June 28, 2001 until June 21, 2007. This of course could be grounds for denying entitlement to the claimed medical benefits.
However, in his order the ALJ specifically found that because the claimant had failed to establish that she suffered a compensable injury she was not entitled to medical benefits. This suggests the possibility of confusion on the reason for denial of medical benefits not related to a psychological condition. Therefore, because the ALJ did not resolve the issue of a request for maintenance medical benefits related to the 1998 claim it is necessary to remand the matter to the ALJ to make any additional findings and resolve the issue of the claimant's request for maintenance medical benefits. Richardson v. Colorado Department of Highways, W.C. # 3-913-601 (November 27, 1991).
In addition, the claimant raised the issue of change of physician at the inception of the hearing. Tr. (5/1/2008) at 18. The claimant also argued for a change of physician in her post hearing position statement. The claimant requested a change of physician to the psychologist Dr. Ambrosia. The claimant argued that she wanted a change of physician because she never agreed with Dr. Olsen's maintenance plan and had to look for help outside of the workers' compensation system.
Section 8-43-404(5)(a) C.R.S. 2008 covers requests to change physicians and provides that upon the proper showing to the division, the employee may procure its permission at any time to have a physician of the employee's selection attend the employee. A claimant is not precluded from seeking or obtaining a change in physicians after having reached maximum medical improvement. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995); see also, Ames v. Industrial Claim Appeals Office, 89 P.3d 477 (Colo.App. 2003) (holding ALJ had authority to hear a change of physician request post-medical maximum medical improvement where there was no evidence to suggest the request was a constructive challenge to the treating physician's finding of maximum medical improvement).
We again note that the ALJ determined, in regards to the 2007 claim and the claimed aggravation of the 1998 claim, and we affirm his determination, that the claimant failed to demonstrate that she suffered a compensable mental impairment. Therefore, no medical benefits are owed to the claimant under those claims and no request to change physicians could be granted. However, the claimant remains entitled to necessary maintenance care related to the 1998 claim pursuant to ALF Felter's order of June 28, 2001. Therefore, it is conceivable that the claimant might be entitled to a change of physician as part of her maintenance medical treatment under the 1998 claim.
We are not authorized to enter factual findings. The determination of whether to authorize a change of physician is a discretionary matter and the issue involves a factual analysis. Landeros v. CF and I Steel, W. C. No. 4-395-314 (October 26, 2000). Because the ALJ did not resolve the issue of a request for change of physician, it is thus necessary to remand the matter to the ALJ to make any additional findings and resolve the issue of the request for change of physician related to the 1998 claim.
The claimant in her application for hearing and in her post hearing brief requested imposition of penalties pursuant to § 8-43-304 because she alleged she was denied all treatment on the 1998 claim. In his order, the ALJ listed as an issue whether the claimant had established by a preponderance of the evidence that the respondent was subject to penalties for failing to provide her with medical treatment. On the issue of penalties, the ALJ concluded that because the claimant had failed to establish that she suffered a compensable injury she was not entitled to penalties. As we read the order, the ALJ was referencing the 2007 claim which he dismissed and we affirm that dismissal. However, the claimant remained entitled to maintenance medical benefits under the 1998 claim. The record shows the claimant timely raised the issue of penalties involving medical benefits connected to the 1998 claim, but that issue was not explicitly addressed in the ALJ's order. Therefore, the matter shall be remanded for the ALJ's determination of the claimant's entitlement to penalties involving the claimed failure to provide medical maintenance benefits connected to the 1998 claim. Richardson v. Colorado Department of Highways, supra.
IT IS THEREFORE ORDERED that the matter is remanded for determination on the 1998 claim of the claimant's right to maintenance medical benefits, penalties and change of physician. We otherwise affirm the ALJ's order issued August 22, 2008.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
MICHELLE FELIX, DENVER, CO, (Claimant).
OFFICE OF THE CITY ATTORNEY, Attn: OLIVIA L HUDSON SMITH, ESQ., C/O: LITIGATION SECTION, DENVER, CO, (For Respondents).
CITY AND COUNTY OF DENVER, Attn: JEAN BAINES, DENVER, CO, (Other Party).