Opinion
W.C. No. 4-359-644
March 18, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied the claim for workers' compensation benefits. The claimant argues the ALJ erred in dismissing the claim, based on stress, prior to considering all the pertinent evidence. The claimant further argues the ALJ misinterpreted the "stress statute" and applied an incorrect standard of law when granting the respondent's "motion for a directed verdict." We affirm.
The claimant alleged that on August 21, 1997, she experienced disabling stress as a result of being summoned to a meeting with a store manager and two security officers to discuss alleged time card irregularities. The claimant testified that she was "bumped" by one of the security officers, intimidated, and isolated during the meeting. Thereafter, the claimant was diagnosed with a "single episode" of major depression. The claimant's treating psychiatrist, Dr. Fuller, opined this condition is related to the claimant's employment and restricted the claimant from work.
The first of eight hearings concerning the claim was conducted on January 22, 2001, and the last hearing was conducted on July 18, 2001. The vast majority of these hearings involved presentation of evidence by the claimant. At the conclusion of the hearing on July 17, 2001, the ALJ determined the claimant's case in chief was closed except for the limited purpose of introducing and considering transcripts of an arbitration hearing. The arbitration hearings, which were conducted in 1998 and 1999, were held to adjudicate the claimant's contention that the respondent wrongfully discharged her under the collective bargaining agreement between the claimant's union and the respondent.
The ALJ ruled he would not consider the voluminous arbitration transcripts except to the extent counsel for both sides submitted lists containing specific citations to relevant evidence. The lists were apparently to be submitted prior to a hearing to be scheduled after July 27, 2001. (Tr. Vol. 8, pp. 103-108).
However, on or about July 17, 1998, the respondent submitted a motion for dismissal under C.R.C.P. 41(b)(1) and/or motion for directed verdict. This motion alleged the claimant failed to prove she sustained work-related stress, that the stress experienced by the claimant was not common to all fields of employment, or that the stress resulted from bad faith conduct by the respondent.
The claimant filed a response to the motion for dismissal on July 25, 2001. The response alleged, inter alia, that dismissal was inappropriate because the "claimant's case in chief remains open for the limited purpose of identifying certain arbitration transcript references," and the claimant's counsel had insufficient time to review the transcripts to identify relevant evidence. Further, the response stated that on July 23, 2001, the arbitrator entered an order finding the claimant was wrongfully discharged, and arguing, at least inferentially, that the arbitrator's order should be considered by the ALJ. The respondent attached a copy of the arbitrator's order to the response.
On July 26, 2001, the ALJ entered the order currently under review. The ALJ expressly found that no physician or psychologist opined, either by testimony or through documentary evidence, that the events which the claimant experienced would evoke significant symptoms of distress in a worker in similar circumstances. Thus, the ALJ concluded the claimant failed to meet her burden of proof under § 8-41-301(2)(a), C.R.S. 1997, and dismissed the claim.
I.
Following the submission of the claimant's opening brief and the respondent's answer brief, the ALJ transmitted the file to us by a "green sheet" dated February 5, 2002. The file was received in this office on February 7, 2002. Apparently, on February 4, 2002, the claimant filed a reply brief with the Division of Administrative Hearings. Thereafter, the respondent moved to dismiss the reply brief or, in the alternative, requested an opportunity to file a sur reply brief. The ALJ apparently did not receive the reply brief or the motions prior to transmitting the record to us on February 5.
Under these circumstances, we decline to consider the reply brief. Section 8-43-301(4), C.R.S. 2001, does not provide for the filing of a "reply brief." Neither does Rule of Procedure VII (D), 7 Code Colo. Reg. 1101-3, provide for reply briefs. Although we may have discretionary authority to permit the filing of a reply brief, we see no need for such a brief in this case. The issues are sufficiently defined by the claimant's opening brief and the respondent's answer brief. Further, to permit filing a reply brief might require us to allow the respondent to file a sur replied brief, especially in the absence of any provision for oral argument before the Industrial Claim Appeals Office.
II.
We first consider the claimant's argument that the ALJ misinterpreted the legal requirements of former § 8-41-301(2)(a) [significantly amended with respect to injuries occurring on or after July 1, 1999, 1999 Colo. Sess. Laws, ch. 103 at 299-300]. The pertinent portions of the statute provide as follows:
A claim for 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. (Emphasis added).
In order to present evidence "supported by the testimony of a licensed physician or psychologist" the claimant must present oral or written evidence submitted by a physician or psychologist. It is not sufficient for the "claimant to paraphrase or testify to what the licensed professional said or did with respect to his or her condition." Department of Labor and Employment v. Esser, 30 P.3d 189, 197 (Colo. 2001).
We have previously held that § 8-41-301(2)(a) requires the claimant to present "testimony," as that term is interpreted by Esser, by a qualified physician or psychologist which supports the contention that the "psychologically traumatic event" would be sufficient to "evoke significant symptoms of distress in a worker in similar circumstances." The purpose underlying this statutory requirement is to reduce the cost of stress claims by "weeding out frivolous claims predicated on alleged idiosyncratic responses to non-stressful, or mildly stressful, occurrences which would not have produced significant distress in a reasonable worker." See Brown v. Family Inn of Colorado Springs, W.C. No. 4-271-352 (November 12, 1996); cf. Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996); Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992). More recently, in Davison v. City of Loveland Police Department, W.C. No. 4-292-298 (October 12, 2001), we held that the term "worker in similar circumstances" means "a worker who occupies a position similar to the claimant," not merely a reasonable worker in the workforce at large. Davison held that this interpretation supports the legislative purpose because it may reasonably be expected that members of the workforce at large would exhibit significant symptoms of distress in certain situations which would not elicit similar symptoms among workers who share the claimant's particular training and experience.
Most of the claimant's argument concerning the ALJ's alleged misinterpretation of the statute pertains to the question of whether the allegedly stressful events were "common to all fields of employment." However, this issue was not the basis of the ALJ's order. Hence, we need not determine whether the evidence and law would support a finding that the claim is based in whole or in part on facts and circumstances common to all fields of employment. See § 8-41-301(2)(c), C.R.S. 2001. We also note the claimant does not dispute that the facts of this case fall under the provisions of § 8-41-301(2)(a), and, therefore, we do not address that issue.
The ALJ correctly determined the claimant was required to present the oral or written opinion of a licensed physician or psychologist which supports the conclusion that the allegedly stressful events would evoke symptoms of distress in a worker similarly situated to the claimant. The issue of whether the ALJ correctly ruled that no such evidence was presented is addressed below.
II.
The claimant next contends the ALJ erred in dismissing the claim before affording the claimant an opportunity to make reference to transcripts of the arbitration hearing. In support of this argument the claimant notes the ALJ ruled the claimant would be permitted to submit a list of relevant passages in the transcripts subsequent to July 27, but the ALJ granted the respondent's motion to dismiss on July 26. In essence, the claimant argues the ALJ denied him due process of law by dismissing the claim without considering all of the pertinent evidence, and without affording the claimant the opportunity to make argument concerning the evidence. We conclude any error by the ALJ was harmless.
We do not dispute the ALJ must afford the parties a reasonable opportunity to present evidence in support of their positions, and should not enter a ruling without notifying the parties of what evidence will be considered and affording them an opportunity to make argument with respect to this evidence. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, even if the ALJ did not consider the contents of the transcripts in dismissing the claim, we agree with the respondent that any such error was harmless.
Workers' compensation proceedings are generally governed by the rules of evidence applicable to civil nonjury cases in the district courts. Section 8-43-210, C.R.S. 2001. C.R.E. 103 (a) provides that "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." Similarly, § 8-43-310, C.R.S. 2001, provides that on appellate review of an order of the Industrial Claim Appeals Office a "court shall disregard any irregularity or error of the director or the panel unless it affirmatively appears that the party complaining was damaged thereby." Thus, if consideration of the arbitration transcripts could not have influenced the ALJ's order dismissing the claim, any error in failing to consider the transcripts is harmless.
Here, the claimant's brief does not point to any specific portion of the arbitration transcripts containing the oral or written opinion of a licensed physician or psychologist that the stress experienced by the claimant was sufficient to cause significant symptoms of distress in a reasonable worker occupying a position similar to that of the claimant. Further, we have independently reviewed the arbitration transcripts and find that no physician or psychologist testified during the arbitration proceeding. Although a few medical records were submitted into evidence during the arbitration, including reports from the claimant's
treating psychiatrist, those documents were also admitted in the workers' compensation proceeding. Those medical records do not contain any medical opinion of the type required by § 8-41-301(2)(a). Consequently, even if the ALJ failed to review the arbitration transcripts, any error was harmless because the transcripts did not contain the type of specialized medical "testimony" which would be sufficient to avoid dismissal of the claim.
We also note that we have reviewed the testimony of Dr. Fuller given during the workers' compensation hearing on January 22, 2001. We agree with the ALJ that none of that testimony amounts to an opinion that the allegedly stressful events would have caused significant symptoms of distress in a similarly situated worker. (Tr. January 22, 2001, pp. 76-77). Although Dr. Gamblin opined the stress which the claimant experienced was greater than that to be "expected by a person working in her capacity," the ALJ correctly points out that Dr. Gamblin did not opine the stress was sufficient to cause significant symptoms of distress in a similarly situated worker.
III.
The claimant next contends the ALJ erred by "ignoring" the "new evidence" that the arbitrator found the claimant was wrongfully discharged. We perceive no error. However, if there was any error, it was harmless.
When the claimant submitted the arbitrator's ruling on July 25, the claimant's case in chief was closed except for the limited purpose of submitting a list of references to the arbitration transcripts. Therefore, the decision of whether to permit the claimant to reopen her case to submit the arbitration ruling was discretionary with the ALJ. Section 8-43-207(1)(c), (g), (j), C.R.S. 2001; Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988); cf. McKinley v. Denver R.G.W.R. Co., 119 Colo. 203,
201 P.2d 905 (1949); In re Marriage of Jackson, 534 P.2d 644 (Colo.App. 1975) (not selected for publication) (decision of whether to permit a party to reopen case after resting is discretionary with trial court).
An abuse of discretion is not shown unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by the law or contrary to the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). Factors which may be considered in determining whether there is good cause to permit submission of the evidence after closure of a party's case include whether the evidence could be outcome determinative, and the inconvenience and expense to the opposing party if additional evidence is admitted. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra; Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987).
Here, numerous hearings had already been conducted at the time the claimant proposed submitting the arbitrator's decision. Further, submission of the arbitrator's decision would have occurred after the apparent conclusion of the claimant's evidence, except for the limited purpose discussed above. The ALJ was certainly free consider the potential factual and legal problems which might complicate presentation of the respondent's case if the arbitrator's decision was admitted.
More importantly, we fail to perceive how the arbitrator's decision could have been outcome determinative with respect to the issue on which the ALJ decided the case. Specifically, the arbitrator's decision, consistent with the evidence submitted during the arbitration proceeding, contains no medical finding that a licensed physician or psychologist was of the opinion that the stress experienced by the claimant would have caused significant symptoms of distress in a worker in similar circumstances. To the contrary, the arbitrator' s decision expressly limits itself to determining the issue of whether the respondent had "just cause" for discharging the claimant under the collective bargaining agreement, and, if not, the appropriate remedy. Indeed, the arbitrator was careful to note that his decision did not involve a "workman's compensation case," and that he had no jurisdiction to resolve such a claim.
The claimant suggests, at page 12 of her brief, that the "complete circumstances" were not known until the arbitrator issued the award, and the claimant was "entitled to present medical testimony" to show the wrongful discharge would have produced symptoms of distress in a worker in similar circumstances. However, our review of the record indicates the claimant was permitted to testify to the circumstances which led to her discharge during the workers' compensation hearings. Consequently, the claimant was certainly free to inquire of her medical experts whether, if her testimony was accurate, such circumstances would have produced significant symptoms of distress in a similarly situated worker. Put another way, the claimant was in no way required to await the arbitrator's decision to present the circumstances surrounding the discharge or inquire of medical experts concerning the impact of these circumstances. Indeed, the claimant did not request a continuance of the workers' compensation hearings pending issuance of the arbitrator's award. Therefore, the ALJ did not abuse his discretion in failing to receive the arbitrator's award into evidence and denying the motion to dismiss based upon the arbitrator's award. Further, because the arbitrator's decision does not contain the opinion of a licensed physician or psychologist on the relevant issue, failure to consider the decision was harmless.
IV.
The claimant also contends the ALJ applied an incorrect legal standard in granting the respondent's motion for a "directed verdict." The claimant argues the respondent's motion was premature because C.R.C.P. 41(b)(1) provides that a defendant may move for dismissal on the grounds the plaintiff has not shown the right to relief after the claimant "has completed the presentation of his evidence." The claimant reasons that, in this case, the motion was made prior to completion of the claimant's case.
However, as discussed above, the claimant's case was closed except for a very limited purpose. Further, the arbitration transcripts, which had not been considered by the ALJ when he ruled on the motion, could not have influenced the ALJ's finding that the claimant failed to show the stress would have produced significant symptoms of distress in a similarly situated worker. Therefore, even if the motion was technically premature, the ALJ's consideration of the motion without regard to the arbitration transcripts was harmless.
Contrary to the claimant's further contention, the ALJ was not required to view the evidence in a light most favorable to the claimant. Where, as here, the ALJ is acting as the trier of fact, the "question is not whether the claimant established a prima facie case, but whether, in light of all the evidence, judgment should be entered for" the respondent. See Blea v. Deluxe/Current, Inc., W.C. No. 3-940-062 (June 18, 1997), citing Smith v. Weindrop, 833 P.2d 856 (Colo.App. 1992). In this regard, the ALJ found the claimant did not present any qualified medical "testimony" concerning the critical issue. Because the record supports the ALJ's finding in this regard, the evidence, even when viewed in a light most favorable to the claimant, would not be sufficient to support an award.
IT IS THEREFORE ORDERED that the ALJ's order dated July 26, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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 18, 2002 to the following parties:
Cheryl Mobley, 15072 Pensacola Pl., Denver, CO 80239
King Soopers, 10400 E. Colfax Ave., Aurora, CO 80010-5019
RSKO, P. O. Box 5307, Denver, CO 80217-5307
Andrew C. Gorgey, Esq., 105 E. Moreno Ave., #101, Colorado Springs, CO 80903 (For Claimant)
Robert A. Weinberger, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For Respondents)
BY: A. Pendroy