Opinion
W.C. No. 4-166-832
July 27, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ) which required the respondents to pay for certain medical treatment. We affirm.
The ALJ found that the claimant sustained an injury to her feet in January 1993. The injury was caused by frostbite which developed when the claimant was forced to drive an unheated vehicle. The claimant testified that, after the injury, she walked with an uneven gait. Shortly thereafter, the claimant developed spinal problems, jaw pain, and depression.
The claimant's treating physician was Dr. Swenson, D.P.M. As a result of complications associated with the injury, Dr. Swenson referred the claimant to Dr. Ellingson, DDS, to treat the claimant's jaw problems. Dr. Swenson also referred the claimant to Daniel Drake, a massage therapist, to treat the claimant's neuromuscular problems, and to Maria Keairnes, M.S.W., to treat the claimant's psychological problems.
At the hearing, the respondents took the position that the treatments rendered by Dr. Ellingson, Mr. Drake, and Ms. Keairnes were either unrelated to the claimant's industrial injury, or unnecessary. However, relying on the claimant's testimony and the reports of the claimant's medical experts, the ALJ rejected the respondents' position and ordered them to pay for the disputed treatments.
I.
On review, the respondents' first contention is that, insofar as the claimant is seeking payment for the psychiatric treatment, the treatment is not compensable because the claimant failed to prove the special elements of a "stress claim" set forth in § 8-41-301(2), C.R.S. (1994 Cum. Supp.) and § 8-41-302(1), C.R.S. (1994 Cum. Supp.). However, we reject this argument because this is not a "claim of mental impairment" within the meaning of § 8-41-301(2).
Section 8-41-301(2)(a) states the following:
"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."
We have previously interpreted § 8-41-301(2)(a) to mean that claims for "mental impairment" involve circumstances where the claimant has not sustained a disabling physical injury contemporaneous with the stressful event. Specifically, claims for "mental impairment" involve the so-called "mental-mental and mental-physical" injuries. See Oberle v. Limon Inn 4 Less, W.C. No. 4-208-354, May 16, 1995; Gaudett v. Stationers Distributing Co., W.C. No. 4-135-027, April 5, 1993.
Our holdings in Oberle and Gaudett were predicated on the Court of Appeals' decision in Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992). In Tomsha, the Court of Appeals indicated that the purpose of the special proof requirements of § 8-41-301(2) is to distinguish between the types of "stress claims" which are likely to be frivolous and unnecessary, and those that are not. Extending the logic of Tomsha, we held that the "no physical injury" language of § 8-41-301(2)(a) serves the objective of reducing frivolous claims because, in "mental-mental and mental-physical" cases, the stimulus to the disability is purely emotional, and therefore, less subject to direct proof than a physical-mental claim. We have also noted that our interpretation of § 8-41-301(2)(a) is consistent with § 8-40-201(2), C.R.S. (1994 Cum. Supp.), which defines an "injury" as "disability or death" resulting from an accident or disease.
Here, the ALJ found that the claimant's physical injury caused psychological problems. Thus, this is not a claim for "mental impairment" within the meaning of § 8-41-301(2)(a), because the claimant sustained a "physical injury" which was the impetus to her subsequent psychological problems. It follows that we are unpersuaded that the ALJ erred in failing to apply the special proof requirements of § 8-41-301 and § 8-41-302. See Young v. Industrial Claim Appeals Office, 860 P.2d 591 (Colo.App. 1993) (sections 8-41-301 and 8-41-302 should be construed together.)
In any event, we see no evidence that the respondents ever argued to the ALJ that the claimant was obliged to meet the special proof requirements of the stress statutes. Consequently, the respondents waived consideration of this issue on appeal. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986).
II.
The respondents' next contention is that the ALJ erred in holding them liable because the claimant sustained a "last injurious exposure" and a "substantial permanent aggravation" to her injury while employed after the injury, with a printing company. We reject this argument.
Section 8-41-304(1), C.R.S. (1994 Cum. Supp.), to which the respondents refer, applies where compensation is "payable for an occupational disease." An occupational disease involves an injury resulting from the conditions under which the work is performed, and which can be seen to follow as a natural incident of the work. Section 8-40-201(14), C.R.S. (1994 Cum. Supp.).
In contrast to an occupational disease, an "accidental injury" is traceable to a particular time, place and cause. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). An accidental injury may be the result of one, or a series of discrete "traumatic events." Valdez v. United Parcel Service, 728 P.2d 340 (Colo.App. 1986); City and County of Denver v. Moore, 31 Colo. App. 310, 504 P.2d 367 (1972).
Here, the ALJ has found that the claimant sustained a discrete "injury" in January 1993. The ALJ also credited the report of Dr. Gremillion, which traces the claimant's foot problem to the "Grade I cold injury" which she sustained while driving a truck in January 1993.
Under these circumstances, we understand the ALJ to have found that the claimant sustained a traumatic injury, or series of injuries, when she was subjected to the cold in January 1993. Consequently, § 8-41-304(1) does not apply to this claim, because the ALJ did not find the claimant suffers from an "occupational disease."
However, even if we were to assume that the claimant suffers from an occupational disease, there is still no merit in the respondents' argument. In order to demonstrate the applicability of § 8-41-304(1), the respondents would be required to demonstrate that the claimant sustained a "last injurious exposure" and "substantial permanent aggravation" of her disease after after leaving the respondent-employer and commencing work with the printing company.
A "last injurious exposure" is an exposure to a concentration of the "hazard" which would be sufficient to cause the disease in the event of prolonged exposure. See Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). The respondents have pointed to no evidence whatsoever that the claimant was exposed to a level of cold, while employed with the printing company, which would have been sufficient to cause frostbite if continued over a prolonged period of time. The fact that the claimant's job as a printer may have been sufficient to illicit pain symptoms does not demonstrate a "last injurious exposure" within the meaning of the statute.
III.
The respondents also appear to argue that the claimant sustained a separate compensable injury or occupational disease while employed at the printing company. However, this argument is without merit.
It is for the ALJ, as the fact-finder, to determine whether a need for medical treatment is caused by the industrial injury, or some other intervening injury. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Moreover, when the ALJ's order concerning causation is supported by substantial evidence, it must be upheld. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.).
The respondents' assertions notwithstanding, the record contains ample evidence that the cause of the claimant's need for the various forms of medical treatment was the sequelae from the frostbite injury, and not any intervening injury sustained while the claimant was working as a printer. The claimant's testimony, as well as the opinions of the medical experts cited in the ALJ's order, support this conclusion.
The mere fact that the ALJ might have interpreted the evidence differently is immaterial on review. We are not free to substitute our judgment for that of the ALJ concerning the weight and credibility of the evidence pertaining to causation. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
IV.
The respondents' final contention is that the ALJ erred in ordering compensation for the psychological treatment provided by Ms. Keairnes because it "in essence allowed the claimant to receive marital, domestic relations and/or family counseling/therapy under the guise of `pain counseling'." We reject this argument.
Under § 8-42-101(1)(a), C.R.S. (1994 Cum. Supp.), the respondents are obliged to provide reasonable and necessary medical treatment to cure and relieve the effects of the injury. Treatment which is necessary to cure or relieve the effects of the injury is compensable even if it has the coincidental effect of treating some non-compensable condition. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949). Ultimately, the question of whether treatment is reasonable and necessary is one of fact for resolution by the ALJ. City County of Denver v. Industrial Commission, 682 P.2d 513 (Colo. 1984).
Here, the ALJ has found that Ms. Keairnes' treatment was designed primarily to relieve the effects of the claimant's pain, and assist her in developing psychological strategies to overcome the pain. This finding is amply supported by Dr. Swenson's October 7, 1993 letter referring the claimant to Ms. Keairnes, as well as Ms. Keairnes report of October 9, 1993.
It is true, as the respondents point out, that the claimant and Ms. Keairnes discussed various matters including the claimant's family problems. However, a plausible interpretation of the evidence is that the claimant's pain was playing a role in these other problems, and that consideration and treatment of these other problems was necessary to relieve the claimant's pain. Therefore, the ALJ did not err in ordering the respondents to pay for Keairnes' treatment.
We have considered the respondents' other arguments, particularly those related to evidence of the claimant's jaw problems and massage therapy. The ALJ's pertinent findings of fact are supported by substantial evidence, and therefore, there is no basis for interfering with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order, dated February 9, 1995, is affirmed.
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 July 27, 1995 to the following parties:
Kristine Fulbright-Lingley, 316 E. Cache La Poudre, Colorado Springs, CO 80903
Rocky Mountain Vending Service, 3515 E. Saint Vrain St., Colorado Springs, CO 80909-6619
State Farm Insurance Company, Attn: Doug Tabor, 4380 S. Syracuse St., Ste. 200, Denver, CO 80237-2624
William C. Jolliffe, Esq., 90 S. Cascade Ave., Ste. 300, P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
Fotios M. Burtzos, Esq., 102 S. Tejon St., Ste. 420, Colorado Springs, CO 80903 (For the Respondents)
By: _______________________