Summary
In Martinez the issue was whether the DIME physician correctly found the claimant was at MMI, or whether the claimant needed treatment for depression to reach MMI. The ALJ determined the claimant failed to overcome the DIME physician's finding of MMI because, as the DIME physician found, the depression was not caused by the injury, but rather a combination of the claimant's permanent work limitations, education, and the unavailability of work which the claimant could perform.
Summary of this case from In re Chavarria, W.C. NoOpinion
W.C. No. 4-291-444
October 13, 2000
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) insofar as the ALJ denied a claim for medical benefits to treat the claimant's depression. We set aside the contested portion of the order and remand for entry of a new order.
In March 1996 the claimant sustained a compensable injury to his back and left upper extremity. On February 11, 1998, one of the claimant's treating physician's placed the claimant at maximum medical improvement (MMI) with a 30 percent whole person medical impairment rating. The rating was predicated on impairment of the upper extremity and back, and did not include any impairment based on depression or psychological factors.
The respondents challenged the treating physician's physical impairment rating by requesting a Division-sponsored independent medical examination (DIME). The claimant requested the DIME physician to address the issues of whether he was at MMI or needed additional treatment for depression, and whether he had any permanent impairment caused by depression.
The DIME physician issued three separate reports dated September 1, 1998, October 29, 1998, and December 4, 1998. The DIME physician assigned a 28 percent whole person rating for impairment of the claimant's back and upper extremity. Further, on September 1 the DIME physician determined it was necessary to refer the claimant for psychological testing to ascertain whether he was suffering depression. The DIME physician also opined that if depression existed, it "clearly does not seem to be related to his pain," but exists because "of a combination of his work limits, educational abilities, and the availability of work in the area where he lives." On October 29 the DIME physician reported that psychological testing revealed the claimant was suffering from depression, but the DIME physician opined "the cause of his depression is his inability to find work due to the industrial injury of his back and left shoulder." The DIME physician further opined that treatment of the depression would not alter the impairment rating or the date of MMI. On December 4, 1998, the DIME physician reiterated the claimant was at MMI on February 11, 1998, and stated the claimant's "depression does not cause his inability to work; his inability to work causes his depression." Finally, the DIME physician opined the claimant's depression "needs to be treated."
The respondents presented the testimony and reports of Dr. Hughes. Dr. Hughes opined the claimant suffers from a depressive order "primarily related to situational stresses induced by a loss of work and male status role." Dr. Hughes testified that the "situational stresses" are "manifestations of the work-related injury," but do "not stem from the physical condition, directly." (Tr. p. 23).
At the hearing, the claimant argued the DIME's "opinion on the work- relatedness of the psychological problem is incorrect," and challenged the DIME's opinion that he was at MMI. Regardless of the MMI question, the claimant sought Grover-style medical benefits for treatment of the depression.
The ALJ, relying on the report of October 29, 1998, found that the DIME physician "opined claimant's depression [is] unrelated to the industrial injury." The ALJ determined the claimant failed to overcome the DIME's opinion concerning the cause of the depression by clear and convincing evidence, and failed to overcome the DIME's opinion concerning MMI by clear and convincing evidence. Therefore, the ALJ denied the claim for additional medical treatment associated with depression.
On review, the claimant contends the ALJ erred in denying the claim for medical treatment of depression. The claimant argues the record lacks substantial evidence to support the ALJ's conclusion that the DIME physician found the depression was "unrelated" to the industrial injury. Instead, the claimant argues the DIME physician found the depression was caused by injury-related disability and, therefore, the requested medical treatment is compensable. The respondents argue the DIME physician found the injury "did not directly cause" the claimant's depression and, therefore, the ALJ correctly ruled the claimant was required to overcome this determination by clear and convincing evidence. We agree with the claimant.
Where, as here, a DIME is performed on the issues of MMI and medical impairment, the DIME physician's opinion that a particular component of the claimant's condition is or is not related to the industrial injury must be overcome by clear and convincing evidence. The question of whether the DIME physician's finding of causation has been overcome is usually one of evidentiary fact for determination by the ALJ. See Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). In such cases, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
However, in some circumstances, the issue of causation involves a mixed question of law and fact, or purely a question of law. For instance, the issue of whether a claimant's disability is caused by the industrial injury or by an efficient intervening cause may be one of fact or law depending on the circumstances of the case. Schrieber v. Brown and Root, Inc., 888 P.2d 274 (Colo.App. 1993). We may set aside an ALJ's order if the ALJ applied an incorrect legal standard in assessing the evidence. Section 8-43-301(8).
Applying these principles here, we agree with the claimant there is not substantial evidence to support the ALJ's finding that the DIME physician opined the claimant's depression was "unrelated" to the industrial injury. As the claimant argues, none of the DIME physician's reports states the claimant's depression was caused by factors having no connection to the industrial injury. Rather, the DIME physician opined the depression stemmed from the claimant's "inability to find work due to the industrial injury of his back and left shoulder." (Emphasis added). (DIME Report, October 29, 1998). Put another way, the DIME physician opined the claimant's injury-related physical impairment resulted in economic disability, and this disability in turn caused depression. (DIME Report, December 4, 1998, claimant has 28 percent whole person impairment and claimant's inability to work causes depression). This also appears to be the view of Dr. Hughes. (Tr. p. 23).
The question then becomes whether the relationship between the claimant's industrial injury and the subsequent depression, which the DIME physician found to exist, is legally sufficient to support an award of medical benefits. We conclude that it is.
Once it is determined the claimant sustained an injury arising out of and in the course of employment, the respondents are liable for "results flowing proximately and naturally therefrom," absent an efficient intervening cause. Accordingly, in Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970), a "refracture" of the claimant's leg was held compensable even though it occurred off the job when the claimant slipped on an icy sidewalk. The court concluded the evidence was sufficient to support the award because the original work-related fracture left the claimant's leg in a weakened condition, and the refracture would probably not have occurred but for the weakened condition. Further, the claimant's action in walking on the icy sidewalk was not an efficient intervening cause.
Moreover, our courts have consistently held that "neurotic mental disabilities" which develop because of the claimant's psychological reaction to a traumatic industrial injury are compensable. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981); but see § 8-41-301(2)(a.5), C.R.S. 2000 (applicable to injuries occurring on or after July 1, 1999). In National Lumber and Creosoting Co., 101 Colo. 535, 75 P.2d 144 (1937), the court upheld an award of permanent total disability based, in part, on "fear and anxiety" caused by the claimant's skull fracture. The court stated that: "To hold that the claimant's mental attitude is not directly affected by the hole in his head, would be to deny something which is common knowledge." 75 P.2d at 146. Similarly, in Arvas v. McNeil Coal Corp., 119 Colo. 289, 203 P.2d 906 (1949), the court reversed an order denying a petition to reopen based on the claimant's allegation that he developed "traumatic neurosis" following the original closure of his claim. In Arvas, the court found there was no evidence in the record to dispute the testimony of the claimant's medical expert that the claimant developed a disabling neurosis evidenced by the fact that the claimant "concentrated all of his attention on himself and on his disabled arm and on his right leg in ankle." The expert described the claimant's "fixation of interest" as an "extremely disabling thing." 203 P.2d at 908.
Applying these principles here, we conclude the DIME physician's opinion compels the legal conclusion that there is a causal relationship between the claimant's industrial injury and the depression. Here, as in Arvas, the DIME physician determined the claimant's depression was caused by the claimant's psychological reaction to physical limitations, and consequent economic loss, caused by the industrial injury. The ALJ's order notwithstanding, we do not consider the claimant's personal educational and occupational circumstances as constituting efficient intervening causes of the claimant's depression. To the contrary, the claimant's overall educational and occupational limitations existed prior to the injury, and it was only after the injury and consequent physical limitations that the claimant developed depression. Thus, the DIME physician's opinion mandates the legal conclusion that the claimant's depression was a natural and proximate result of the industrial injury.
It follows the ALJ erred in denying the claim for medical benefits for treatment of depression on grounds that the claimant failed to overcome the DIME physician's opinion that the depression was "unrelated" to the industrial injury. However, the matter must be remanded to the ALJ to determine what treatment, if any, is reasonable and necessary to relieve the claimant's depression or prevent deterioration of his condition. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). In this regard, we note the claimant does not now seek to overcome the DIME physician's opinion that he is at MMI for the depression, or that the depression did not cause any rateable impairment. (Claimant's Brief at 7-8; claimant requests that the case be remanded with instruction that the depression is compensable and claimant is entitled to medical treatment for the depression). Therefore, we understand the claimant to be seeking only ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
IT IS THEREFORE ORDERED that the ALJ's order dated February 8, 2000, is set aside insofar as it denied the claim for medical benefits for treatment of depression, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
Copies of this decision were mailed October 13, 2000 to the following parties:
Roger L. Martinez, P. O. Box 357, Center, CO 81125
Jerry Martinez, Mac-Bestos, Inc., 1235 Delaware St., Denver, CO 80204
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Steven R. Waldmann, Esq., 331 N. Circle Dr., #201, Colorado Springs, CO 80909-6255 (For Claimant)
Michael W. Sutherland, Esq., 1660 S. Albion St., #425, Denver, CO 80222-4043
By: L. Epperson