Opinion
W.C. No. 4-549-974.
April 8, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which determined that James Gordley (decedent) committed suicide as a result of compensable "mental impairment," and awarded the decedent's spouse (claimant) death benefits. The respondents contest the sufficiency of the evidence to establish compensable "mental impairment," assert the suicide was a non-compensable "self-inflicted injury," and argue the claimant is limited to twelve weeks of permanent disability benefits. The respondents also argue the ALJ erred in admitting documentary evidence. We affirm.
The ALJ's findings may be summarized as follows. In 1998 the decedent was hired by the employer Advanced Energy to work as a vice president of sales. However, in 2001 the decedent was placed in mergers and acquisitions where he was in charge of a project to acquire a Japanese company (AERA). As a result the claimant was required to fly between Japan and the United States every two weeks. He also flew extensively within the United States. After the employer acquired AERA, the decedent became general manager of the new company and product line.
On May 21, 2002, the decedent committed suicide by jumping off of an AERA building in Japan. The ALJ credited the report and testimony of a psychiatrist, Dr. Pock, that the duties of the decedent's employment, which often required 17 hour days and extensive travel, constituted "psychologically traumatic events" producing extreme emotional distress, fatigue and insomnia from "jet lag." These circumstances resulted in the "recognized psychological conditions" of depression and an adjustment disorder which caused the decedent to commit suicide. Dr. Pock also opined the conditions of the employment were beyond a worker's ordinary experience and would have caused significant distress in a similarly situated worker. The ALJ also credited the testimony and reports of the decedent's family physician, Dr. Munzing. Dr. Munzing, who treated the decedent in May 2002, opined the decedent was suffering from "insomnia related depression."
Under these circumstances, the ALJ concluded the decedent suffered from compensable "mental impairment" within the meaning of § 8-41-301(2)(a), C.R.S. 2004, and that there was "no indication" that the decedent's mental impairment resulted from any good faith action of the employer. Further, the ALJ found the decedent's mental condition was "severe" and rendered him unable to resist the suicidal impulse. Consequently, pursuant to § 8-42-114, C.R.S. 2004, the ALJ awarded death benefits to the claimant.
I.
The respondents make several arguments concerning the sufficiency of the evidence to support the finding that the decedent suffered compensable mental impairment. First, the respondents assert there is no evidence, including the testimony of Dr. Pock, to support the finding that the decedent sustained a "recognized permanent disability," or that there was any "psychologically traumatic" event or events. We disagree.
Section 8-41-301(2)(a) provides as follows:
A claim for mental impairment must be proven by evidence supported by this testimony of a licensed physician or psychologist. For purposes of the 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 form the claimant's then occupation and place of employment in order to be compensable.
As a general matter, determination of the cause of a claimant's mental impairment is a question of fact for resolution by the ALJ. Public Service v. Industrial Claim Appeals Office, 68 P.3d 583 (Colo.App. 2003). Pursuant to the first sentence of § 8-41-301(2)(a), the claimant must produce expert opinion concerning "those elements of the `mental impairment' definition that fall within the purview of the licensed physician's or psychologist's expertise." Thus, expert testimony must support a finding that the claimant sustained a "psychologically traumatic event," but no such testimony is required to support findings that the traumatic event(s) was outside a worker's usual experience or that the event(s) would cause significant symptoms of distress in a similarly situated worker. Davison v. Industrial Claim Appeals Office, 84 P.3d 1023, 1031-1032 (Colo. 2004).
We assume, arguendo, that Davison requires the claimant to present expert testimony to support findings that the alleged mental impairment was "permanent" and "recognized." The probable duration and proper classification of psychological illness appear to implicate the medical expert's specialized knowledge.
Because causation is a factual issue for the ALJ, we must uphold his determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; Trujillo v. Industrial Claim Appeals Office, 957 P.2d 1052 (Colo.App. 1998). This standard of review requires that we consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The respondents' assertion notwithstanding, the record contains substantial evidence, supported by the expert opinion of Dr. Pock, that the decedent sustained "recognized" mental impairment which was "permanent." Dr. Pock pointed out that his diagnoses of work-related depression and adjustment disorder are "recognized" in the Diagnostic and Statistical Manual, Fourth Edition. (Tr. P. 98). Further, he opined that these diagnoses are work-related and led the decedent to commit suicide. (Tr. Pp. 99, 105). Since Dr. Pock expressly opined that the decedent's psychological conditions caused him to commit suicide, it is implicit that Dr. Pock believes the psychological condition is "permanent." We agree with the claimant that it is difficult to conceive of a more permanent condition than death.
We also reject the respondents' argument that the evidence is inadequate to support the ALJ's finding that the decedent sustained a series of "psychologically traumatic events." Dr. Pock, as well as Dr. Munzing, explained that extensive overseas travel across many time zones can cause physiological changes which interfere with sleep, and in turn lead to depression. (Tr. Pp. 101,103; Munzing Depo. Pp. 15-16). Further, there was evidence that the duties of th job placed extraordinary demands on the decedent's time which deprived him of sleep. This evidence was corroborated by the testimony of the claimant and two of the decedent's coworkers.
The respondents assert the evidence compelled the ALJ to find that the "stress" was the result of good faith promotion within the organization. However, the ALJ found the stress resulted from extensive travel and extreme work demands, not the employer's good faith actions in dealing with the decedent's employment. We may not interfere with this finding since it pertains to causation and is supported by substantial evidence. Public Service v. Industrial Claim Appeals Office, supra.
Finally, the respondents argue the claimant failed to introduce "specific testimony" that the psychologically traumatic events would produce "significant symptoms of distress" a worker in similar circumstances. While the claimant was not required to produce expert opinion on this question, Dr. Pock offered an expert opinion that a similar worker would have experienced such symptoms. The ALJ credited this testimony and consequently this argument is without merit. (Tr. pp. 104, 110; Findings of Fact 26, 27).
II.
The respondents next contend the evidence compels the conclusion that the decedent's suicide was "intentionally self-inflicted" and not compensable under § 8-41-301(1)(c), C.R.S. 2004. The respondents assert the decedent's notes demonstrate he was "aware of the situation" and "intended to take his own life." We perceive no error.
The rule in Colorado is that a suicide is not an "intentionally self-inflicted injury" if the effects of the decedent's condition result in a derangement of mind so that the decedent was unable to resist the impulse to take his own life, or cause an injured worker to commit self-destructive acts without knowingly intending to end his life. Resolution of this question is one of fact for determination by the ALJ. Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994); Jacko Painting Contractors v. Industrial Commission, 702 P.2d 755 (Colo.App. 1985).
There is substantial evidence to support the ALJ's finding that the decedent's "severe mental condition" rendered him unable to resist the impulse to take his own life. Here, as in Jacko, there is evidence that the decedent's personality changed substantially in the days and weeks before the suicide. Further, Dr. Pock made specific psychological diagnoses and opined that these diagnoses were the cause of the suicide. While the decedent's notes are subject to interpretation, they support the inference that the decedent's mental state had so deteriorated that he believed suicide was the "only way out" of his "difficult position" and he thought he was "at fault" for his circumstances. Because the ALJ's conclusion represents a plausible inference drawn from the record, we may not interfere with it. Wilson v. Industrial Claim Appeals Office, supra.
III.
The respondents next contend the ALJ erred in admitting in evidence computer records of airline flights taken by the decedent. However, even if admission of these documents was erroneous, the error was harmless. The record, including the testimony of the claimant, Dr. Pock, Dr. Munzing and the decedent's coworkers is replete with references to the extensive flight schedule of the decedent. Indeed, the respondents do not dispute the validity of the ALJ's findings that the decedent traveled extensively to Japan and within the United States. The airline documents were, at most, cumulative on this issue and we do not perceive how their exclusion could lead to a different result. See C.R.E. 103(a) (error may not be predicated on admission of evidence unless a substantial right of a party is affected).
IV.
The respondents next contend the ALJ erred in awarding death benefits to the claimant. The respondents rely on § 8-41-301(2)(b), C.R.S. 2004, which provides that, "Notwithstanding any other provision of articles 40 to 47 of this title, where a claim is by reason of mental impairment, the claimant shall be limited to twelve weeks of medical impairment benefits . . . inclusive of any temporary disability benefits." The respondents argue that the "notwithstanding any other provision" language demonstrates the statute is meant to exclude awards for death benefits in cases where the death results from mental impairment. We disagree.
We recently rejected a similar argument in Davison v. City of Loveland Police Department, W.C. No. 4-292-298 (January 5, 2005). In Davison we stated the following:
We agree with the ALJ that the plain meaning of § 8-43-301(2)(b) has no relevance to the issue of death benefits. At the time subsection (2)(b) was enacted the General Assembly was fully aware of the right to death benefits provided by § 8-42-114. Further the General Assembly was presumably aware of the longstanding "rule of independence" under which death benefits provided to dependents and wage loss disability benefits provided to an injured worker are considered to create distinct rights and compensate for separate losses. Corbin v. Industrial Commission, 724 P.2d 677 (Colo.App. 1986), see also, Metro Glass Glazing, Inc. v. Orona, 868 P.2d 1178 (Colo.App. 1994).
Section 8-43-301(2)(b) makes no reference at all to death benefits, but creates a limitation on "medical impairment benefits." Medical impairment benefits represent a class of permanent partial disability benefits (PPD) benefits which compensate an injured employee for permanent disability under the scheme established by § 8-42-107, C.R.S. 2004. City of Thornton v. Replogle, 888 P.2d 782, 784-785 (Colo. 1995). Moreover, PPD benefits are not payable to dependents except where the decedent reaches maximum medical improvement (MMI) before death, and consequently the right to PPD benefits "accrues" to the decedent before the death. See § 8-41-503(2), C.R.S. 2004; Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996).
Because the statute creates a limitation on PPD benefits and contains no reference to death benefits, the plain language of the statute does not support the construction urged by the respondents. Indeed, the legislature has been quite explicit when it desires to impose limitations on death benefits, as is the case with the offset for Social Security death benefits contained in § 8-42-114. If the General Assembly wished to limit death benefits where the death results from mental impairment, we believe it would have done so expressly. Cf. City of Thornton v. Replogle, supra (if legislature wished to impose a twelve week limitation on temporary disability benefits in addition to PPD benefits it would have expressly done so). Moreover, a consistent and harmonious reading of the Act does not support the supposition that the General Assembly intended to limit dependents to receiving twelve weeks of PPD benefits. A harmonious reading of the Act recognizes that death benefits are distinct from PPD benefits, and the limitation on "medical impairment benefits" applies where PPD benefits are payable to an eligible claimant, not cases where the claimant is seeking death benefits based on dependency.
In the context of the respondents' argument here, the "notwithstanding" language of subsection (2)(b) applies to "any other provision" of the Act concerning awards of medical impairment or PPD benefits. Similarly, the term "claimant" refers to an injured worker eligible to receive PPD benefits, not a dependent eligible to receive death benefits. The respondents do not persuade us to depart from our holding in Davison v. City of Loveland Police Department, supra, and we adhere to its reasoning in this case.
IT IS THEREFORE ORDERED that the ALJ's order dated October 1, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Nancy Gordley, Whitefish, MT, Benjamin Hudson, Jr., Assistant General Counsel, Advanced Energy, Inc., Fort Collins, CO, Allen Hecker, Wausau Insurance Companies, Overland Park, KS, Janet L. Frickey, Esq., Lakewood, CO, (For Claimant).
Bill Hileman, Esq., Whitefish, MT, (For Claimant).
Raymond A. Melton, Esq., Denver, CO, (For Respondents).