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In re Nunnally, W.C. No

Industrial Claim Appeals Office
Mar 30, 1998
W.C. No. 4-168-841 (Colo. Ind. App. Mar. 30, 1998)

Opinion

W.C. No. 4-168-841

March 30, 1998


FINAL ORDER

The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ), which awarded death benefits to the claimant, and denied the respondents' request for imposition of a fifty percent penalty based on intoxication. We affirm.

The ALJ found the decedent, Anthony Nunnally (Nunnally), suffered a compensable back injury on March 5, 1993. Ultimately, he underwent back surgery on January 4, 1994.

Relying on the testimony of the claimant, as well as Nunnally's treating psychologist, Dr. Cohen, the ALJ found that the effects of the injury caused the claimant to develop "clinical depression or a depressive disorder." This condition was characterized by "mood swings and displays of anger, extreme frustration, impatience, interpersonal relations, and increasing reliance on the use of alcohol or drugs."

The ALJ found that Nunnally committed suicide on May 7, 1994. Although not specifically mentioned by the ALJ, the record contains evidence that at the time of the suicide Nunnally's blood alcohol was .209 grams of alcohol per 100 milliliters of blood. (Allen Depo. P. 10). The record also contains evidence that Nunnally argued with his wife in the hours before suicide.

Resolving conflicting medical testimony in favor of the opinions expressed by Dr. Cohen, the ALJ found that the suicide was caused as a "direct and proximate result of the ongoing effects of [Nunnally's] work-related injury." The ALJ also declined to reduce the death benefits by fifty percent under § 8-42-112(1)(c), C.R.S. 1997, because the respondents failed to prove the claimant's intoxication was a "proximate cause or cause in fact" of the suicide. In so doing, the ALJ expressed doubt about whether the intoxication statute applies in cases of suicide such as that of Nunnally.

I.

On review, the respondents first contend that the record does not contain substantial evidence to support the ALJ's finding that Nunnally's suicide was a direct and natural consequence of the industrial injury. To the contrary, the respondents assert that the record proves the suicide was caused by Nunnally's intoxication and dispute with his wife. As a corollary to this argument the respondents assert that the ALJ applied an incorrect legal standard because he did not find that Nunnally was suffering from a "severe" mental condition. We disagree with these arguments.

In Jakco Painting Contractors v. Industrial Commission, 702 P.2d 755 (Colo.App. 1985), the court held that suicide may be compensable under the "chain-of-causation rule" despite the statutory prohibition against compensation for self-inflicted injuries. Section 8-41-301(1)(c), C.R.S. 1997. The court stated the rule as follows:

"We hold that if a work connected injury causes a deranged mental condition which in turn is a proximate cause of the injured worker's suicide, then the decedent worker's dependents are entitled to compensation."

The Court of Appeals reaffirmed the validity of Jakco in Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994), when it held that "depression, as opposed to severe mental condition," may be sufficient to support a finding of causation in a suicide case.

Moreover, it is generally held that if an industrial injury causes or aggravates a preexisting tendency to abuse alcohol, injury or death resulting from the abuse of alcohol is compensable under the "quasi-course of employment" doctrine. 1 Larson's Workers' Compensation Law, § 13.21(e). However, the use of the alcohol must be the "direct and natural consequence" of the original injury. See Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985); Hembry v. Industrial Claim Appeals Office, 878 P.2d 114 (Colo.App. 1994).

Generally, the issue of whether a "deranged mental condition" caused by the industrial injury is the cause of a subsequent suicide is one of fact for determination by the ALJ. Dependable Cleaners v. Vasquez, supra. Similarly, the question of whether the abuse of alcohol is a direct and natural consequence of the injury is also one of fact. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Hembry v. Industrial Claim Appeals Office, supra.

Because these issues are factual in nature, we must uphold the ALJ's order if supported by substantial evidence. Section 8-43-301(8), C.R.S. 1997. In applying this standard, we must view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In particular, we note that assessment of the weight and credibility of expert medical opinion on the issue of causation is a matter within the fact-finding authority of the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).

The respondents' arguments notwithstanding, the record contains substantial evidence to support the ALJ's determination that Nunnally's suicide is compensable under § 8-41-301(1)(c). Dr. Cohen testified that Nunnally suffered from an "adjustment reaction with mixed emotional features, which means he had a presentation consistent with both mild to moderate anxiety as well as depression." (Cohen Depo. p. 5). He further testified that it was "probable" Nunnally was depressed at the time of the suicide. (Cohen Depo. p. 45). Finally, it was Dr. Cohen's clinical judgment that the suicide was a product of the depression resulting from the industrial injury, and not intervening circumstances such as the dispute between Nunnally and his wife. (Cohen Depo. pp. 57-61; Cohen Report March 24, 1995; Tr. p. 18).

Dr. Cohen's opinion is corroborated by the testimony of the claimant concerning Nunnally's state of mind following the injury. The claimant testified that Nunnally was prone to outbursts of anger, and would isolate himself in his room. Further, she indicated that Nunnally's use of alcohol increased substantially following the injury.

It is true, as the respondents argue, that some evidence in the record would support the inference that Nunnally's injury-related depression was not the cause of his suicide. As the respondents note, there is evidence that Nunnally's physical condition was improving in March and April, and that no physician or psychologist considered him suicidal. However, the weight to be accorded this evidence was a matter for the ALJ, and we cannot say the factors cited by the respondents are so overwhelming that the ALJ was obliged to disregard the testimony of Dr. Cohen and the claimant. It is true that Dr. Cohen referred to his opinions as "clinical speculation," but the ALJ was free to interpret that statement as a "clinical judgment" based on Dr. Cohen's treatment of Nunnally, and the information made available to Dr. Cohen. (Tr. p. 14).

Similarly, the ALJ was not required to find that the claimant's intoxication constituted a "efficient intervening cause" of the claimant's suicide. To the contrary, the ALJ found that the drinking was a symptom of the claimant's injury-related depression, not an intervening event. This conclusion is amply supported by the testimony of the claimant as well as Dr. Cohen's testimony that depression often leads to drinking. (Cohen Depo. p. 36).

Finally, insofar as the respondents assert that the ALJ was required to make a finding that Nunnally's depression was "severe," we disagree. To the contrary, the ALJ was merely required to find that Nunnally suffered a deranged mental condition which was sufficient to impair his ability to resist suicidal impulses, or caused him to commit self-destructive acts without intending to cause death. Dependable Cleaners v. Vasquez, supra. On findings largely indistinguishable from those present here, the Court of Appeals upheld an award of death benefits in Jakco Painting Contractors v. Industrial Commission, supra. Thus, the ALJ's findings are sufficient.

II.

As a separate matter, the respondents argue that the ALJ misapplied the burden of proof in determining that the claimant's depression was the cause of his suicide. The respondents point out that § 8-42-112(1)(c) provides that "when an employee has a 0.10 or more grams of alcohol per 100 milliliters of blood . . . it shall be presumed that the employee was intoxicated and that the injury was due to such intoxication." Under this statute the burden then shifts to the claimant to prove by clear and convincing evidence that intoxication was not the cause of the injury. The respondents assert that this "presumption" should be applied to § 8-41-301(1)(c) in determining whether the claimant's suicide was proximately caused by depression or intoxication. We reject this argument.

Section 8-42-112(1) does not create a "defense" for employers, but instead establishes a penalty based on misconduct of the claimant. Wild West Radio, Inc. v. Industrial Claim Appeals Office, 886 P.2d 304 (Colo.App. 1994) ( Wild West I). Thus, § 8-42-112(1)(c) does not create an absolute bar to compensation, nor do its provisions create unique standards of proof in cases involving intoxication. See Electric Mutual Liability Insurance Co. v. Industrial Commission, 154 Colo. 491, 391 P.2d 677 (1964). To the contrary, "the General Assembly has not evidenced an intent to preclude all compensation for excessive levels of intoxication." Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6, 8 (Colo.App. 1995) ( Wild West II).

It follows that the respondents are incorrect when they suggest that the provisions of § 8-42-112(1)(c) create a "presumption" which the claimant was required to overcome in order to establish that Nunnally's suicide was the result of depression. At most, the provisions of § 8-42-112(1)(c) could reduce the amount of death benefits to which the claimant is entitled. See Harrison Western Corp. v. Claimants in re Death of Hicks, 185 Colo. 142, 522 P.2d 722 (1974).

For the same reason, we reject the respondents' assertion that the ALJ placed the burden of proof on the respondents to disprove compensability. The ALJ explicitly found that Nunnally's suicide was caused by his depression. Thus, the ALJ's statement that the respondents failed to carry their burden of proof was in reference to the penalty established by § 8-42-112(1)(c), not the claimant's initial burden to prove causation.

III.

The respondents next contend that the ALJ erred in holding that they are not entitled to a fifty percent penalty based on Nunnally's intoxication at the time of the suicide. The respondents argue the presumption created by § 8-42-112(1) required the ALJ to find that intoxication was a proximate cause of Nunnally's suicide. We find no error in the award, but for reasons different than those stated by the ALJ.

As we have noted, § 8-42-112(1)(c) creates a penalty for intoxication which "results" in the injury. The purpose of this penalty is to deter claimants from deliberately becoming intoxicated to the point that they create a risk to themselves and others while performing their jobs. Wild West I, 886 P.2d at 306; cf. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995) (purpose of penalty for violating a safety rule is to deter misconduct).

In contrast, we have already noted that the Workers' Compensation Act (Act) provides for the compensability of direct and natural consequences of an industrial injury, even where those consequences may involve self-destructive acts such as the misuse of drugs or alcohol. See Dependable Cleaners v. Vasquez, supra. This rule reflects the general principle that the Act is based on no-fault concepts and is primarily concerned with compensating the victim. Wild West I, 886 P.2d at 306.

In reconciling these competing concepts, we conclude that § 8-42-112(1)(c) is not intended to apply to cases where the claimant's intoxication is a consequence or symptom of the injury rather than a contributing cause of the underlying industrial injury. This is true because the deterrent objective of § 8-42-112(1)(c) does not function where the effects of the industrial injury have significantly impaired the claimant's ability to exercise his will to refrain from self-destructive behaviors such as excessive drinking, or ultimately suicide.

Here, the ALJ found that Nunnally's abuse of alcohol was a product of the depression caused by the industrial injury. Under such circumstances, it was the industrial injury itself, not Nunnally's independent misconduct, which caused the intoxication at the time of the suicide. Consequently, § 8-42-112(1)(c) does not apply to the facts of this case, and the ALJ committed no error in declining to apply that statute.

IV.

We note that the ALJ's order of May 10, 1995, did not become final and reviewable until the ALJ awarded benefits in his order dated January 29, 1998. Further, the respondents did not file any appeal from the January 29, 1998 order. However, we do not consider this failure to be jurisdictional because the ALJ indicated to the parties that he would forward the matter to us without requiring further action. Thus, the ALJ led the parties to believe no appeal was necessary. See Antonow v. Colorado Disabled American Veterans, W.C. No. 4-242-196 (February 5, 1998); Converse v. Zinke, 635 P.2d 882 (Colo. 1981).

IT IS THEREFORE ORDERED that the ALJ's order dated May 10, 1995, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
NOTICE

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. 1997.

Copies of this decision were mailed March 30, 1998 to the following parties:

Theresa Nunnally, 3210 E. Locust St., Ft. Collins, CO 80524

Wal-Mart Distribution Center, Attn: Marti Dean, R.N., 7504 E. Crossroads Blvd., Loveland, CO 80538-8958

Wal-Mart Stores, Inc., P.O. Box 116, Bentonville, AR 72712-0116

National Union Fire Ins. of Pittsburgh, P.O. Box 32130, Phoenix, AZ 85018

Claims Management, Inc., Attn: John Causseaux, 3901 Adams Rd., Ste. C, Bartlesville, OK 74006-8458

Richard K. Blundell, Esq., 800 Eighth Ave., Ste. 202, Greeley, CO 80631 (For the Claimants)

Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)

By: ________________________________


Summaries of

In re Nunnally, W.C. No

Industrial Claim Appeals Office
Mar 30, 1998
W.C. No. 4-168-841 (Colo. Ind. App. Mar. 30, 1998)
Case details for

In re Nunnally, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF ANTHONY NUNNALLY, Decedent, and THERESA…

Court:Industrial Claim Appeals Office

Date published: Mar 30, 1998

Citations

W.C. No. 4-168-841 (Colo. Ind. App. Mar. 30, 1998)

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