W.C. No. 4-292-298Industrial Claim Appeals Office.
May 18, 2000
ORDER OF REMAND
The claimant (wife of the deceased employee) seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied the claim for death benefits. The claimant contends the ALJ erred in analyzing the claim under the mental impairment statute, and that the evidence does not support the denial of benefits. We set the order aside and remand for entry of a new order.
The decedent was a captain employed by the Loveland Police Department. He committed suicide on April 16, 1996. The claimant sought death benefits alleging that the decedent suffered from depression caused by job-related stress. Specifically, the claimant contended the decedent was troubled by the duty of imposing discipline on other officers, and was particularly disturbed when he learned, in April 1996, that police officers under his command engaged in improper conduct during a “prostitution sting” operation.
The claimant also presented evidence that the decedent’s depression began four to five years prior to the suicide. In support of her position, the claimant presented the testimony of Dr. Miller, a psychiatrist. Based on interviews with witnesses, and a review of various documents including the decedent’s suicide note, Dr. Miller opined the decedent suffered from a major depressive disorder which was the result of a “combination of things” including job pressures which had been building over four to five years. Dr. Miller expressly stated that the “chief factor” in the decedent’s depression was job pressure, including the sting operation. (Tr. October 2, 1998, pp. 88-89, 91, 93). Dr. Miller also opined that by the time of the suicide the decedent was so depressed that he was essentially unable to weigh “the accuracies or the reality” of events around him. (Tr. October 2, 1998, p. 118).
The respondents presented the testimony of Dr. Vandenberg, also a psychiatrist. Dr. Vandenberg stated that:
“In people with major depressive disorder, the precipitating event that can be found is usually found in th first episode, when they first get depressed, there’s something there. But in the second and third episode it becomes less and less frequent that there’s any precipitating event at all. And in spite of the fact that people try and identify one, frequently major depressive episodes occur out of the blue.” (Emphasis added) (Tr. January 22, 1999, p. 30).
Dr. Vandenberg also testified that he did not believe the decedent’s death was triggered by his employment. Instead, Dr. Vandenberg emphasized that, in cases of major depressive disorder, the brain undergoes biological changes during the “first episode.” Thereafter, depression may recur, becoming more severe, and “there’s no explanation for this and there’s usually no identifiable psychosocial stressor.” (Tr. January 22, 1999, pp. 32-33). Finally, Dr. Vandenberg stated that by the time of the decedent’s suicide “external events wouldn’t be nearly as important” as biological changes resulting from the untreated depression. (Tr. January 22, 1999, pp. 40-41, 46, 50-51).
The ALJ concluded that the claim for death benefits is subject to the provisions of the mental impairment statute found at former section 8-41-301(2)(a), C.R.S. 1998 [significantly amended for injuries occurring on or after July 1, 1999, 1999 Colo. Sess. Laws, ch. 103 at 298-300]. Specifically, the ALJ determined the claim is predicated on the assertion that the decedent experienced “highly stressful conditions” over a period of four to five years. Therefore, the ALJ reasoned that the claim is based on “multiple stressful events” falling within the ambit of the statute.
The ALJ further determined that the claim for mental impairment did not arise “primarily from the [decedent’s] then occupation and place of employment” within the meaning of former section 8-41-301(2)(b), C.R.S. 1998. In support of this determination, the ALJ credited the opinion of Dr. Vandenberg that the decedent’s depression was “not precipitated by his employment,” but was the “result of a combination of factors and then went into remission, recurring several times over the four or five years prior to [the decedent’s] death.” (Finding of Fact 38). The ALJ further stated that “the expert witnesses are in agreement that the death of [the decedent] was precipitated by serious underlying depression and was not related to any events of his employment.” (Conclusion of Law 2).
I.
On review, the claimant contends that the ALJ erred in analyzing the claim under the special compensability requirements of section 8-41-301(2). The claimant asserts that the claim is not one for “mental impairment” because it stems from an “occupational disease” rather than an “accidental injury.” We find no error.
It is true that section 8-41-301(2)(a) states that a claim for “mental impairment” means one “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.” However, our courts have held that the statute applies where the claimant alleges that multiple “traumatic events” caused the mental impairment. Trujillo v. Industrial Claim Appeals Office, 957 P.2d 1052 (Colo.App. 1998) McCallum v. Dana’s Housekeeping, 940 P.2d 1022 (Colo.App. 1996). Further, the purpose of the statute is to create special elements of proof when the claimant alleges that purely mental stimuli caused the mental impairment. Esser v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. 99CA0106, January 20, 2000).
Here, the claimant is alleging that purely mental stimuli (job stresses) lead to a mental condition (depression), which ultimately caused the decedent to commit suicide. Thus, the claim is a “mental-mental”claim subject to the statute. Esser v. Industrial Claim Appeals Office, supra.
The claimant’s attempt to categorize the claim as one for an “occupational disease” does not serve to remove the case from the strictures of section 8-41-301(2). As we have previously noted, the term “accidental injury” includes disability or death resulting from an “occupational disease.” Section 8-40-201(2), C.R.S. 1999; DuShane v. Beneficial Colorado, Inc., W.C. No. 4-218-217 (July 17, 1996), aff’d., DuShane v. Beneficial Colorado, Inc., (Colo.App. No. 96CA1404, December 27, 1996) (not selected for publication). We see no logical or statutory basis for the claimant’s suggested distinction between claims based on an non-traumatic occupational stress and claims for mental impairment resulting from multiple traumatic events. If the claimant’s analysis were correct, the purpose of section 8- 41-301(2) would be defeated. See Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996) (purpose of mental impairment statute is to eliminate frivolous stress claims).
II.
The claimant next contends that Finding of Fact 38, in which the ALJ found that Dr. Vandenberg opined the decedent’s depression was not “precipitated by his employment,” but began “as a result of a combination of factors,” is unsupported by the evidence. The claimant asserts that “extensive evidence in the record overwhelmingly establishes” the decedent “was subjected to ongoing pressures of his job” which culminated in his suicide. Because we conclude that the evidence does not support the ALJ’s finding that Dr. Vandenberg opined the claimant’s depression “was not precipitated by his employment,” we remand for entry of a new order.
In claims for workers’ compensation, the presence of a preexisting condition does not disqualify the claim from compensability if the circumstances of employment aggravate, accelerate, or combine with the disease or infirmity to produce disability for which workers’ compensation is sought. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). In cases involving mental impairment it is not required that the employment be the sole stressor, only that the “stressor causing the injury [arise] primarily in the workplace.” General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Once compensability is established, the respondents are liable for natural and proximate results of the injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). Further, under the “chain of causation” test, a suicide may be held a compensable consequence of an industrial injury if the injury causes a deranged mental condition which renders the decedent unable to resist the impulse to take his own life. Dependable Cleaners v. Vasquez, 883 P.2d 583 (Colo.App. 1994); Jacko Painting Contractors v. Industrial Commission, 702 P.2d 755 (Colo.App. 1985).
Generally, issues involving causation are matters of fact for resolution by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). However, we may set aside findings where they are unsupported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. In addressing the sufficiency of the evidence we are required to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences drawn from the evidence. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
Here, the ALJ’s determination that the claimant’s depression did not arise “primarily” from the conditions of his employment was substantially based on his finding that Dr. Vandenberg opined the depression “was not precipitated by [the decedent’s] employment.”
(Finding of Fact 38.) However, we do not believe this finding represents a plausible interpretation of Dr. Vandenberg’s testimony. Although Dr. Vandenberg initially testified that depression can develop for “no reason,” he immediately clarified that statement by remarking that the “precipitating event that can be found is usually found in the first episode, when they first get depressed, there’s something there.” Dr. Vandenberg opined that subsequent periods of depression may occur spontaneously, and without identifiable psychosocial stressors, because the claimant’s brain chemistry has been compromised. Thus, it was Dr. Vandenberg’s opinion, as the ALJ recognized in Conclusion of Law 2, that the decedent’s suicide was precipitated by a “serious underlying depression,” not the immediate circumstances of the decedent’s employment. (Tr. January 22, 1999, pp. 46, 50-51).
However, there is a distinction between finding that the decedent’s depression was not caused by the conditions of employment and stating that the immediate cause of the suicide was not the circumstances of employment. As we read Dr. Vandenberg’s testimony, he offered no opinion whatsoever concerning the cause of the “precipitating event” or “first episode” which played a causal role in the decedent’s initial period of depression. He simply opined that by the time of the suicide the decedent’s actions were dictated by his brain chemistry, not external conditions of employment including the faulty sting operation. (Tr. January 22, 1999, pp. 35-36).
The distinction between the initial cause of the depression and the immediate cause of the suicide is legally significant. If the ALJ were to find that the decedent’s initial depression was “primarily” triggered by the stress of his employment, and that the claim satisfied the other requirements of compensability under section 8-43-301(2), the ALJ could find that the decedent’s eventual suicide was a natural and proximate result of the work- related mental impairment. Standard Metals Corp. v. Ball, supra; Dependable Cleaners v. Vasquez, supra. Such an interpretation would not be inconsistent with Dr. Vandenberg’s testimony. Further, it would be consistent with the ALJ’s conclusion that “that death [of the decedent] was precipitated by a serious underlying depression and was not related to any events of his employment.” (Emphasis added).
To summarize, we set aside Finding of Fact 38 to the extent it states that Dr. Vandenberg opined that decedent’s “depression was not precipitated by his employment.” At most, Dr. Vandenberg opined that the decedent’s depression immediately preceding the suicide was caused by brain chemistry, not the circumstances of employment. However, Dr. Vandenberg rendered no opinion concerning whether or not the claimant’s employment was a precipitating factor in the claimant’s initial period of depression.
Furthermore, the record contains some evidence which would support an inference that the claimant’s depression was precipitated by his employment. Therefore, the matter must be remanded for entry of a new order concerning the compensability of the claim for death benefits. In reaching this result, we should not be understood as expressing any opinions concerning the proper resolution of the underlying factual issues, including those involving causation. Resolution of these issues is a factual matter for the ALJ. Further, the claim should be adjudicated under special proof requirements set forth in section 8-41- 301(2). In light of these conclusions, we need not reach the claimant’s remaining arguments because they may be rendered moot by the subsequent order.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 1, 1999, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed May 18, 2000
to the following parties:
Lana Lea Davison, 2479 Amber Dr., Loveland, CO 80537
City of Loveland Police Department, City of Loveland, 500 E. 3rd St., Loveland, CO 80537
CIRSA, 950 S. Cherry St., #800, Denver, CO 80222
Jan A. Larsen, Esq., 375 E. Horsetooth Rd., Bldg. 6, #200, Ft. Collins, CO 80525 (For Claimant)
Anne Smith Myers, Esq. and Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy