Opinion
W.C. No. 4-226-336
August 15, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ) which awarded medical benefits for treatment of the claimant's stress-related ulcers. We reverse.
The ALJ found that, during August and September 1994, the claimant experienced "stress . . . as a result of her employment." The stress resulted from the claimant's dealings with government employees during the remodeling of a building.
In September 1994, the claimant was diagnosed as suffering from stomach ulcers. The ALJ found that the work-related stress did not "cause" the ulcers, but "did increase the acid level in her stomach" to the extent that the ulcers became symptomatic and would not heal.
Under these circumstances, the ALJ rejected the respondents' argument that this case involves a claim for "mental impairment" as defined by § 8-41-301(2)(a), C.R.S. (1995 Cum. Supp.). To the contrary, the ALJ determined that the claimant was seeking "benefits for her ulcers, a physical injury." Since the ALJ concluded that the claim "only involves a physical injury," he determined that it is compensable as an occupational disease under § 8-40-201(14), C.R.S. (1995 Cum. Supp.), and is not subject to the special proof requirements of § 8-41-301(2). Therefore, the ALJ ordered the respondents to pay for the diagnostic testing and treatment of the claimant's ulcers. Despite these conclusions, the ALJ went on to find that "dealing with government employees is common to all fields of employment."
On review, the respondents contend that the ALJ erred in determining that this case does not involve a claim for "mental impairment" within the meaning of § 8-41-301(2)(a). The respondents argue that proper interpretation of the statute required the ALJ to determine whether the "stimulus" to the ulcers was purely mental, not whether the mental stimulus ultimately resulted in a "physical injury." Respondents also contend that, because the ALJ found that dealing with government employees is common to all fields of employment, the claim is not compensable. We agree with the respondents, and therefore, reverse the ALJ's order.
Section 8-41-301(2)(a) provides as follows:
"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 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. . ."
The issue in this case is whether the statutory reference to a "physical injury" concerns an injury which is independent of the stressful occurrence, or whether the physical injury may be a result of the stress itself. Put another way, the question is whether the "physical injury" must occur in connection with the "psychologically traumatic event," or may simply be a subsequent by-product of the mental trauma. In resolving this issue, we should construe the statute so as to serve the legislative intent. To the extent the statute is ambiguous, we may consider the problem which the legislative enactment was designed to solve. Moreover, we should construe the statute in a manner that gives "consistent, harmonious, and sensible effect to all of its parts." Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
In our view, it is not clear whether the statutory reference to a "physical injury" contemplates an independent physical injury which occurs contemporaneously with the "psychologically traumatic event," or merely refers to the result or ultimate effect of the mental stress. However, in DuShane v. Beneficial Colorado, Inc., W.C. No. 4-218-217, July 17, 1996, we concluded that the "physical injury" must occur simultaneously or in conjunction with the "psychologically traumatic event" in order to facilitate the legislative purpose of § 8-41-301(2)(a).
Our decision in DuShane relied heavily on the decision of the court of appeals in Oberle v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0934, May 2, 1996.) In Oberle, the court held that the purpose of the physical injury requirement is to differentiate between cases in which a physical injury causes mental impairment, and those where mental impairment follows solely an emotional stimulus. In so doing, the court stated that cases in which a "claimed disability is based on emotional or psychological causes and in which physical injury is absent are less subject to direct proof and more susceptible to being frivolous in nature." Thus, the court stated that "if there is a physical component that contributes to the injury, the restrictions contained in the mental impairment statute are not implicated."
Based on Oberle, we reasoned as follows in the DuShane case:
"It must be noted that the Oberle decision does not, on its face, purport to decide whether cases involving an 'emotional stimulus' which causes a 'physical injury' fall within the ambit of § 8-41-301(2)(a). However, we interpret Oberle as implying that such cases are subject to the statute. This is true because cases in which a purely emotional stimulus is alleged to have caused identifiable physical symptoms are far less subject to direct proof than cases in which a physical component occurs simultaneous to or in conjunction with the 'psychologically traumatic event' underlying the claim. Moreover, the Oberle court's focus on the 'stimulus' to the mental impairment appears to require a determination of whether the physical injury is a cause of the mental impairment, not whether physical injury is a result of the impairment."DuShane also relied on Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). Donlon stated that a "distinction between mental impairment caused in conjunction with physical injury or while the individual is within a 'zone of danger' and those not resulting from such causes has long been recognized as a proper distinction to draw under the common law for the award of tort damages for mental suffering based on negligence." DuShane observed that this language from Donlon comports with Oberle's requirement that the "physical component" of the accidental injury must be a "stimulus" to and "contribute to" the impairment.
Finally, DuShane stated that if § 8-41-301(2)(a) is read to exclude all cases in which the claimant suffers any "physical injury," the statute would be rendered meaningless. This is true because few if any persons experiencing stress, from whatever causes, are free from physical symptoms of one type or another. Thus, the statute could be avoided in nearly every case by the simple expedient of proving the existence of a stress-related symptom which is "physical" in its manifestation. Yet, the existence of the physical symptom would prove nothing concerning whether the origin of the stress was the claimant's workplace. See also, Pate v. Regional Transportation District, W.C. No. 4-222-307, December 7, 1995.
For these reasons, we conclude that the ALJ erred in holding that this case does not involve a claim for "mental impairment" as defined by § 8-41-301(2)(a). To the contrary, the ALJ has found that the claimant's "disability," namely the aggravation of ulcers, resulted from psychologically traumatic events which did not involve any physical injury. To the contrary, the claimant's physical physical problems are the result of prolonged stress, and do not "involve" any independent physical injury which occurred in conjunction with the stress. Hence, § 8-41-301(2)(a) is applicable.
Moreover, the ALJ found that the claim is based "in part" on facts and circumstances that are common to all fields of employment. Specifically, the ALJ determined that "dealing with government employees is a circumstance which is common to all fields of employment." Therefore, the claimant failed to establish the statutory requirement set forth in § 8-41-301(2)(c), C.R.S. (1995 Cum. Supp.), and the claim must be dismissed. In view of this disposition, we need not consider the respondents' other arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated November 13, 1995, is reversed, and the claim for benefits is denied and dismissed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ David Cain ___________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1995 Cum. Supp.).
Copies of this decision were mailed August 15, 1996 to the following parties:
Judith A. Burnham, 921 Westmoreland Rd., Colorado Springs, CO 80907
Frederick Kleinbub, 6211 Camino de la Costa, La Jolla, CA 92037-6523
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
Bernard W. Messer, Esq., 727 Washington St., Denver, CO 80203 (For the Claimant)
Thomas M. Schrant, Esq., 3464 S. Willow St., Denver, CO 80231 (For the Respondents)
By: ___________________