Opinion
W.C. No. 4-533-791.
January 8, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied medical benefits. We reverse.
The pertinent facts are undisputed. The claimant suffered a traumatic brain injury when he was struck in the back of the head by a six-inch brass ball valve in the course of his employment. As a direct consequence of the industrial injury the claimant suffers from migraine headaches, memory loss, mood swings, sleep disturbances, impulsivity, agitation, emotional instability and depression.
Prior to the industrial injury the claimant had a history of alcohol abuse. The problem was in complete remission immediately preceding the industrial accident. However, as a result of the industrial injury, the claimant resumed excessive alcohol consumption that culminated in his hospitalization at the Psychiatric Unit of the St. Mary's Hospital for treatment of mood instability.
The ALJ found the hospitalization was reasonable and necessary to treat the effects of the industrial injury. However, relying on Briles v. Montrose Memorial Hospital, W.C. No. 4-522-095 (May 2, 2003), the ALJ determined the claimant was required to establish a claim of compensable mental impairment in order to prove the hospitalization is a compensable medical benefit.
Compensable mental impairment is defined in § 8-41-301(2)(a), C.R.S. 2003 as:
"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."
In 1999 the General Assembly added § 8-41-301(2)(a.5), C.R.S. 2003, which provides that for purposes of subsection (2) "mental impairment" includes " a disability arising from an accidental injury that leads to a permanent psychological disability."
Because the claimant had not yet attained maximum medical improvement (MMI), and in reliance on Briles, the ALJ determined the claimant failed to prove he sustained a "permanent" psychological disability as required by § 8-41-301(2)(a.5). Therefore, the ALJ determined the respondents could not be held responsible for the hospitalization costs to treat the claimant's mental impairment.
On review the claimant contends the ALJ erroneously determined that § 8-41-301(2)(a) precluded an award of medical benefits under the circumstances presented here. The claimant reasons that because he was not at MMI he was not alleging permanent psychological impairment and the special proof requirements do not apply. We agree.
The claimant in Briles v. Montrose Memorial Hospital, supra, developed anxiety and depression due to physical limitations caused by an industrial injury to her right shoulder. After an unsuccessful return to modified employment the claimant attempted suicide. The depression and apparent suicide attempt were causally related to the industrial injury. Therefore, the insurer was ordered to provide temporary total disability benefits. On review, a division of the Industrial Claim Appeals Panel (Panel) concluded that the ALJ erred in failing to require the claimant to comply with the evidentiary requirements of § 8-41-301(2)(a) to establish her psychological injury. In so doing, the Panel held that § 8-41-301(2)(a.5) subjected the claimant to the proof requirements of subsection (2)(a).
Thereafter, in Chavarria v. Dayton Hudson Corporation, W.C. No. 4-492-078 (June 5, 2003), another division of the Panel interpreting § 8-41-301(2)(a.5), concluded that the requirements of § 8-41-301(2)(a) are not applicable unless the claimant is alleging a "permanent" recognized mental disability. Therefore, the Panel held that the claimant was not required to establish the proof requirement of § 8-41-301(2) to prove her entitlement to medical benefits to treat temporary symptoms of depression that developed after she reached MMI for a physical injury.
Here, the ALJ correctly points out that "permanency" is not ascertainable until MMI. This is true because MMI is defined as the point in time when the claimant's condition is "stable and no further treatment is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. 2003. Thus, we agree with the ALJ that imposing a burden on a pre-MMI claimant to prove the existence of a permanent psychological disability in order to recover medical benefits designed to achieve MMI would disqualify all claimants from receiving pre-MMI treatment at the respondents' expense, even those who are found to have a permanent psychological disability after MMI. ( See Conclusions of Law 2).
We also note that § 8-41-301(2)(b), C.R.S. 2003, provides that where the claim is by reason of mental impairment, the claimant shall be limited to twelve weeks of medical impairment benefits inclusive of temporary disability benefits. In City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995), the Supreme Court held that similar language in the predecessor statute created no limitation on a claimant's receipt of temporary disability benefits. Rather, the court concluded the statute was designed to limit the claimant's recovery for permanent mental impairment similar to the limitations established for scheduled disabilities under § 8-42-107(2). Ibid at 785.
Based on Replogle, and the ALJ's reasoning in this case, we conclude the Panel's reasoning in Chavarria v. Dayton Hudson Corporation, supra, is the most persuasive. Accordingly, we now conclude the ALJ erred in relying on the contrary holding in Briles v. Montrose Memorial Hospital, supra. It follows the claimant's failure to establish the proof required by § 8-41-301(2) did not preclude him from recovering the disputed medical benefits.
Further, the ALJ's remaining findings compel an order requiring the respondents to pay for the hospitalization at St. Marys. Therefore, we reverse the ALJ's order.
In view of our conclusions we need not consider the claimant's further arguments on the issue.
IT IS THEREFORE ORDERED that the ALJ's order dated July 21, 2003 is reversed, and the respondents are ordered to pay for the claimant's hospitalization in the Psychiatric Unit of St. Mary's Hospital from December 12, 2002 through December 17, 2002.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on January 8, 2004 by A. Hurtado.
Jeffrey Hebertson, 907 3rd St., Paonia, CO 81428
Bill Olsen, Arch Coal, Inc., P. O. Box 591, Somerset, CO 81434
Pacific Employers Insurance Company, P. O. Box 2941, Greenwood Village, CO 80150
Evelyn Rademacher, ESIS, P. O. Box 911, Portland, OR 97207
Christopher Seidman, Esq., 101 So. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)