Opinion
W.C. No. 4-164-993
March 11, 2002
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant suffered compensable mental impairment, and awarded temporary disability benefits. We affirm.
The claimant was employed by the respondent for 25 years. Between 1997 and 1991, the claimant was witness to sexual harassment of female employees by male co-workers. The claimant sympathized with the female employees and was saddened by the treatment they endured. Sometime in 1991 a female employee named Vicki Hansel (Hansel) filed a federal Title VII claim against the respondent based on the pattern of sexual harassment she experienced at the employer's premises.
The ALJ found that after the claimant testified on Hansel's behalf, the claimant became the target of an "intense and concerted campaign of harassment and shunning" by some of his male co-workers. This included sabotage of his work equipment, vandalism of his personal property and verbal abuse in which he was accused of selling his testimony for sexual favors from Hansel.
It is undisputed the claimant is genetically pre-disposed to developing bipolar disorder, but had not developed the disorder prior to 1991. The ALJ found that prior to 1991 the claimant was a well-liked employee, with an even temperament who had never been the subject of any disciplinary action by the respondent. However, the ALJ determined that a result of the harassment, the claimant's latent bipolar disorder manifested, and caused a deterioration of his mental status. By December 24, 1992, the claimant was medically unable to continue working.
Dr. Stein, a psychiatrist who evaluated the claimant in 1994, 1995 and again 2000, noted the absence of any work difficulties or any signs or symptoms of a bipolar disorder prior to January 5, 1992. (Stein December 13, 1994). Dr. Stein opined that because the bipolar disorder did not manifest before the claimant reached age 50 years, it was unlikely it would have manifested in the absence of the stress and harassment the claimant experienced following his testimony on the Hansel case. Dr. Stein also opined the work-related harassment was "unique," psychologically traumatic, generally outside of a worker's usual experience, would evoke significant symptoms of distress in any worker in similar circumstances, and was alone sufficient to render the claimant temporarily disabled. (Tr. January 18, 2001, Tr. pp. 48-50)
Crediting the opinions of Dr. Stein, and rejecting contrary medical opinions the ALJ determined the claimant sustained his burden to prove the harassment caused compensable mental impairment as defined by § 8-41-301(2). Therefore, the ALJ ordered the respondent to pay temporary disability benefits.
I.
On review the respondent contends the ALJ's findings are not supported by the record and the order is not consistent with the applicable law. We disagree.
Former § 8-41-301(2)(a), C.R.S. 1998 provides that compensable "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."
Former § 8-41-301(2)(a) also provides that mental impairment from a "disciplinary action . . . taken in good faith by the employer, does not arise out of the employment.
Subsection 8-41-301(2)(a) was amended in 1999 to provide that "mental impairment" means a "recognized, permanent disability." ( See 1999 Colo. Sess. Laws, Ch. 103 at 300). However, the amendment only applies to injuries that occur on or after July 1, 1999. Therefore, we agree with the respondent that the ALJ erred insofar as she applied the 1999 version of the statute. However, we conclude the error was harmless.
The 1999 version of the statute restricts the definition of compensable mental impairment to a "recognized, permanent disability." In contrast the predecessor statute only required that the mental impairment produce a "disability." It follows that the 1999 amendment to § 8-41-301(2)(a) was designed to create a stricter definition of compensable mental impairment and impose a greater burden on the claimant to prove a compensable injury from work-related stress. Because the ALJ's erroneous application of the 1999 legal standard inured to the benefit of the respondent, it was harmless and shall be disregarded. See § 8-43-310; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
II.
Relying on Horodyskyj v. Karanian, ___ P.3d ___ (Supr. Ct. 99SC875, October 1, 2001), the respondent next contends the ALJ erroneously found the claimant's mental impairment arose out of the employment.
The claimant contends the respondent did not raise this argument before the ALJ. We agree with the claimant. ( See respondent's post-hearing Position Statement, August 17, 2001). Consequently, the argument is not properly before us on review. See Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996), cert. denied, August 25, 1997, 97SC27. However, even if the argument were properly before us, it would be rejected.
It is undisputed that an injury must arise out of and in the course of employment to be compensable. Section 8-41-301(1)(b), C.R.S. 2001. In Horodyskyj v. Karanian, supra, the Supreme Court held that sexual harassment by one employee of another employee does not arise out of employment and thus, sexual harassment is not compensable under the Workers' Compensation Act (Act). In so doing, the court relied on Tolbert v. Martin Marietta, 759 P.2d 17 (Colo. 1988) and Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991), which stand for the principle that work place assaults are compensable if the assault has an inherent connection with the employment or the assault is the result of a neutral force. In contrast, a private dispute imported to the work place is not compensable. In Re Questions Submitted by U.S. Court of Appeals supra.
In Horodyskyj, the court concluded that acts of sexual harassment are not neutral and have no inherent connection to the employment. Rather, the court concluded that acts of sexual harassment are "highly personal." Ibid at 478.
There was no concession in Horodyskyj that the alleged acts of sexual harassment were neutral. To the contrary, the plaintiff alleged the sexual harassment originated in personal matters unrelated to work functions. Under these circumstances, the court concluded the claims were not compensable under the Workers' Compensation Act.
Here, there is absolutely no evidence or assertion of any personal relationship or personal dispute which gave rise to the harassment experienced by the claimant. In fact, all of the relevant facts pertain to inappropriate conduct towards female employees in the work-place, the employer's lack of response to the conduct, the co-workers acts of retaliation in the work-place and the employer's failure to stop the retaliation. Furthermore, we are not persuaded the harassment arose from a "personal" dispute just because the claimant "chose" to testify in the Hansel trial.
Moreover, this workers' compensation claim is not premised on "sexual harassment," as that term is used in the context of Title VII litigation. Rather, the claim arises out of the work-related retaliation toward the claimant following his testimony in the sexual harassment claim of a co-worker. Accordingly, Horodyskyj v. Karanian, supra, is factually and legally distinguishable.
III.
Section 8-41-301(2)(b)-(d) requires that to prove compensable mental impairment the work-related stress which is the basis of the workers' compensation claim must arise "primarily from the claimant's then occupation and place of employment", and the mental impairment claim "cannot be based in whole, or in part, upon facts and circumstances that are common to all fields of employment." Further, the mental impairment must be "in and of itself, either sufficient to render the employee temporarily disabled or to require medical or psychological treatment."
The respondent contends the ALJ misapplied the law by failing to analyze each of the multiple stressors in the claimant's life to determine whether the mental impairment claim was based, at least in part on facts common to all fields of employment.
The ALJ recognized that in the fall of 1991, the claimant was involved in a grievance against a co-worker, named Bobby Vigil (Vigil). Based upon the claimant's report, Vigil was issued a disciplinary warning for verbal abuse of a female co-worker. Vigil contested the grievance through union rules and the claimant was scheduled to testify against Vigil at a hearing in the late summer or early fall of 1992. However, the claimant became overwhelmed by fear at the thought of testifying against Vigil and refused to testify.
Relying on medical records from the summer of 1992 which note the claimant's anger about the way the union was handling the Vigil grievance, the respondent contends the Vigil grievance was the biggest stressor in the claimant's life. The respondent also reasons that because the disciplinary action against Vigil was a "good faith" action by the employer, the resulting stress on the claimant does not qualify as compensable mental impairment. Again, we disagree.
The cause or causes of a claimant's mental impairment, and the commonality of those causes are questions of fact to be resolved by the ALJ. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 119 (Colo.App. 1994). Accordingly, we are bound by the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; General Cable Co. v. Industrial Claim Appeals Office, supra. Where the evidence is subject to conflicting inferences, we must defer to the ALJ's determination of the inferences to be drawn. Furthermore, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence and we decline the claimant's invitation to do so. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the ALJ expressly rejected the respondent's contention that the Vigil grievance was a significant contributing factor in the development of the claimant's bipolar disorder. The ALJ also found the claimant had no family issues which contributed to the onset of the disorder. (Findings of Fact 9, 10). Rather the ALJ determined the injury occurred prior to the time the claimant was to testify against Vigil. The respondent's arguments notwithstanding, the ALJ's determination is supported by the claimant's testimony, the testimony of the claimant's former co-workers, Jane Gallegos and Marcia Oates and Dr. Stein's reports. (Tr. May 17, 2000, pp. 38, 39, 91, 92, 117, 118,119); Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998) (plausible inferences drawn from the evidence are binding on review). In particular, the claimant testified that it was the harassment after his testimony in the Hansel trial that made him feel he had lost control and prompted him to seek medical treatment in January 2000. ( See Tr. May 17, 2001, pp. 124-125). He added that the bipolar disorder was diagnosed in January 2000 by Dr. Kraft. (Tr. May 17, 2001, pp. 147).
In his report dated, May 26, 1995, Dr. Stein opined that the claimant's need for treatment in January 1992 was caused by the harassment he experienced after the Hansel trial. (Stein May 26, 1995). Evidence that by August 1992, the claimant's declining mental status included reports of anger over how the union was handling the Vigil matter is not inconsistent with the ALJ's determination. Therefore, we need not consider the respondent's remaining argument that the claimant's injury is not compensable insofar as it was caused by the employer's good faith disciplinary action against Vigil.
The respondent also contends the ALJ's finding that the claimant did not become temporarily totally disabled until December 1992 is inconsistent with his finding that the injury occurred prior to the Vigil matter. Contrary to the respondent's contention, the claimant does not have to prove he became temporarily disabled to prove he suffered compensable mental impairment. Rather, former § 8-41-301(2)(d) merely required the claimant to prove that the mental impairment was sufficient, in and of itself, to render the claimant temporarily disabled or to require medical treatment. Here, the ALJ determined the mental impairment was sufficient to require medical treatment in early 1992, but that the claimant was not temporary totally disabled until December 1992.
Regardless, of claimant's pre-disposition for bipolar disorder, Dr. Stein's testimony amply supports the ALJ's finding of a causal connection between the work-related harassment and the need for treatment of the bipolar disorder in January 1992. See Peterson v. ENT Federal Credit Union, 827 P.2d 621, 623 (Colo.App. 1992) (existence of latent tendency irrelevant where no evidence previously undiagnosed latent disease ever prevented claimant from working). Dr. Stein stated that people with a genetic vulnerability to bipolar disorder usually develop it early in their lives and 90 percent of all bipolar patients will be diagnosed by age 50. (Tr. January 18, 2001, p. 43; Stein report May 26, 1995, p. 16). Dr. Stein opined that in view of the late onset of the claimant's disorder, it was likely it would never have manifested in the absence of the intense harassment the claimant experienced at work and thus, he opined that the sole and direct cause of the bipolar manifestation was the work stress. (Tr. January 18, 2001, p. 46).
Dr. Stein's opinions are buttressed by the opinions of Dr. Byers. Under these circumstances, we cannot say the ALJ erred in crediting the opinions of Dr. Stein instead of the contrary opinions of Dr. Roberts. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ's credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony). Moreover, Dr. Stein's opinions amply support the conclusion the claimant sustained a compensable bipolar disorder.
The respondent is obviously dissatisfied with the ALJ credibility determinations and her resolution of conflicts in the evidence. However, we have no authority to substitute our judgment for that of the ALJ.
To the extent the respondent has raised additional arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated August 21, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
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. 2001. 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 decision were mailed March 11, 2002 to the following parties:
Walter Lindsey, 1602 N. Cannon St., Marceline, MO 64658
Public Service Company of Colorado, Michelle Scholes, G. E. Young Co., 4251 Kipling St., #510, Wheat Ridge, CO 80033
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Michael A. Perales, Esq. and Gina L. Gradecki, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Pendroy