W.C. No. 4-522-095Industrial Claim Appeals Office.
April 30, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which was entered on remand. The claimant contends the ALJ erroneously denied her request for temporary disability and medical benefits. We agree, and therefore, reverse.
The claimant suffered an industrial injury to her right shoulder on October 30, 2001, which was surgically repaired. The claimant subsequently became anxious, depressed, and despondent about her physical limitations and the uncertainty of whether the injury would be found compensable and require a second surgery. In November 2001 the treating physician, Dr. Krebs, recommended counseling for depression.
In December 2001 the claimant underwent a second surgery for the industrial injury. Afterwards, the claimant was released to return to modified employment. The employer provided modified employment which required the claimant to rotate between several clerical positions. A meeting was scheduled to revise the rotation schedule so the claimant did not have to perform the same job she was doing at the time of the injury. When the meeting was postponed, the claimant accused her supervisor of harassment and proceeded to swallow several pills in an apparent suicide attempt.
The claimant received emergency treatment on March 20, 2002, and was then referred for further treatment with a mental health counselor, Ms. King. On March 27, 2002 the claimant began treating with Dr. Leopoldt. On June 17, 2002, Dr. Krebs referred the claimant to Dr. Leopoldt, retroactive to March 27, 2002.
At a hearing on August 12, 2002, the claimant requested temporary disability and medical benefits on account of the depression. The ALJ determined the claimant’s depression and apparent suicide attempt were caused by the shoulder injury and subsequent work-related issues stemming from the injury, which included doubt about her ability to perform her job. Therefore, in an order dated September 23, 2002, the ALJ awarded temporary disability on account of the depression. The ALJ also determined Dr. Leopoldt became an authorized treating physician effective March 27, 2002.
The respondents appealed the September 23 order, contending the ALJ erred in failing to require the claimant to comply with the evidentiary requirements of § 8-41-301(2)(a), C.R.S. 2003, to establish compensable mental impairment. We agreed and remanded the matter to the ALJ to redetermine compensability based on requirements of §8-41-301(2)(a).
Pursuant to that remand, the ALJ issued an order dated September 26, 2003, which determined the claimant failed to establish she suffered compensable medical impairment as defined by § 8-41-301(2)(a). Therefore, the ALJ denied and dismissed the claim. The claimant appealed the September 26 order.
I.
Initially, we reject the respondents’ contention the claimant waived any dispute with the propriety of our remand order. Our order set aside the ALJ’s previous order and remanded the matter to the ALJ with directions to enter a new order. Because our Order of Remand did not award or deny any benefit or penalty, it was not immediately reviewable See § 8-43-301(8), C.R.S. 2003; Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Consequently, the claimant’s failure to file a notice of appeal did not waive her right to dispute the propriety of our Order of Remand.
II.
The claimant contends our Order of Remand erroneously concluded the claim is governed by § 8-41-301(2). We agree.
“Mental impairment” is defined in § 8-41-301(2)(a) 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.”
Section 8-41-301(2)(a) was first enacted in 1991 in an effort to eliminate frivolous “stress” claims by establishing a stricter standard for injuries resulting from an emotional stimulus. See 1991 Colo. Sess. Laws, Ch., 219, at 1294; Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004); Tomsha v. City of Colorado Springs, 856 P.2d 13
(Colo.App. 1992); City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995). Thus, Oberle v. Industrial Claim Appeals Office, 919 P.2d 918
(Colo.App. 1996), construed § 8-41-301(2) as not applicable where the claimant’s psychological injury was the result of a physical injury.
However, the General Assembly subsequently amended the statute in 1999 by adding § 8-41-301(2)(a.5), C.R.S. 2002, which provides that the term “mental impairment” includes “a disability arising from an accidental physical injury that leads to a recognized permanent psychological disability.” See 1999 Colo. Sess. Laws, Ch. 103 at 299. The effect of the amendment was to expand the scope of the mental impairment statute. In Chavarria v. Dayton Hudson Corporation, W.C. No. 4-492-078
(June 5, 2003), a division of the Industrial Claim Appeals Panel noted that the amendment does not provide that the special proof requirements apply in all cases where a physical injury leads to a mental condition; rather, the expansion of the statute is limited to cases where physical injury leads to a permanent recognized disability. (Emphasis added). Consequently, in Chavarria v. Dayton Hudson Corporation, supra, the Panel held that § 8-41-301(2)(a.5) is not applicable unless the claimant is alleging a “permanent” recognized mental disability.
Relying on Chavarria, and explicitly rejecting the reasoning applied in our Order of Remand here, another division of the Panel subsequently issued Herbertson v. Arch Coal Inc., W.C. No. 4-533-791 (January 8, 2004). In Herbertson, the claimant suffered a traumatic brain injury during an industrial accident. As a direct consequence of the industrial injury the claimant suffered migraine headaches, memory loss, mood swings, sleep disturbances, impulsivity, agitation, emotional instability and depression. The Panel held that the claimant’s failure to establish the proof required by § 8-41-301(2) did not preclude him from recovering medical benefits for the psychological effects of the brain injury.
The respondents contend Chavarria and Herbertson were wrongly decided. However, in retrospect, we are persuaded by the reasoning in Chavarria
and Herbertson. Therefore, we conclude that the special proof required by § 8-41-301(2) does not apply in a hearing on temporary disability or medical benefits where the claimant does not allege that the physical injury caused a “permanent recognized mental disability.”
Here, the claimant did not allege a permanent mental condition at the hearing on August 12, 2002. Rather, the claimant alleged she was temporarily disabled due to depression caused by the admitted physical injury. Under these circumstances, the ALJ’s September 23, 2002 order applied the correct standard of proof in determining that the psychological injury was compensable. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Martinez v. Mac-Bestos, Inc., W.C. No. 4-291-444 (October 13, 2000). Further, in that order, the ALJ found a direct causal connection between the claimant’s admitted physical injury and the claimant’s subsequent depression. The ALJ’s finding is supported by substantial evidence, and the findings support the conclusion the claimant’s psychological injury arose out of and in the course of employment. It follows that we erred in setting aside the September 2002 order and remanding the matter to the ALJ for a new order based on the proof required by § 8-41-301(2)(a). In view of this disposition we need not consider the respondents’ contentions that the alleged mental impairment is based on facts common to all fields of employment. However, we shall consider the further arguments raised by the respondents in appealing the September 2002 order.
Relying on Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082
(Colo.App. 2002), the respondents contend the claimant’s psychological injury is not compensable because it is the result of litigation stress. We disagree.
It is well-established in Colorado that if an industrial injury leaves the body in a weakened condition, and the weakened condition plays a causative role in a subsequent injury, the subsequent injury is a compensable consequence of the industrial injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). In contrast, the issue in Jarosinski v. Industrial Claim Appeals Office, supra, was whether the claimant’s psychological injury was compensable under the “quasi-course of employment” doctrine.
The purpose of the “quasi-course of employment” doctrine is to attenuate the ordinary time, place, and cause requirements inherent in a compensability determination where the industrial injury is not the direct cause of the claimant’s worsened condition, but rather the legal cause of the condition. Employers Fire Insurance Company v. Lumbermen’s Mutual Casualty Company, 964 P.2d 591 (Colo.App. 1998). Under the “quasi-course of employment” doctrine, an injury occurring during travel to or from authorized medical treatment is compensable because the employer is required to provide medical treatment for the industrial injury and the claimant is required to submit to the treatment. Excel v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993). Under these circumstances, the treatment becomes an implied part of the employment contract, and thus, injuries sustained while attending the authorized medical treatment are considered to be a legal consequence of the original industrial injury. Jarosinski v. Industrial Claim Appeals Office, 62 P.3d at 1085. Jarosinski also holds that if the element of a contractual obligation is missing, the resulting injures are not compensable under the quasi-course of employment doctrine. Id. at 1085. Accordingly, the court held that problems resulting from a claimant’s negative psychological reaction to the litigation process are distinguishable from the type of injuries covered by the quasi-course of employment doctrine because the process of litigating a workers’ compensation claim may not fairly be characterized as a service or activity inherent in the employment contract. Id. at 1085.
The cause of the claimant’s psychological injury is a question of fact for determination by the ALJ. Owens v. Industrial Claim Appeals Office supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002).
Here, the ALJ found a direct causal relationship between the admitted physical injury and the claimant’s depression. Therefore, it is immaterial whether the depression is compensable under the “quasi-course of employment” doctrine.
Further, the industrial injury does not have to be the sole cause of the claimant’s disability before the claimant can recover temporary disability benefits. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev’d on other grounds Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). Accordingly, the ALJ’s finding that the claimant also experienced “stress” about the uncertainty of whether the workers’ compensation claim would be found compensable did not preclude the ALJ from awarding temporary disability benefits for the depression.
III.
Finally, the respondents contend the ALJ erroneously determined Dr. Leopoldt became an authorized treating physician on March 27, 2002. Because the ALJ’s findings suggest he may have applied an incorrect legal standard, we set aside the award of medical benefits and remand the matter for the entry of a new order on this issue.
The respondents are liable for all authorized medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228
(Colo.App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990). “Authorization” refers to the physician’s legal status to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997); One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 507 (Colo.App. 1995). A physician who commences to treat the industrial injury upon a referral made in the “normal progression of authorized treatment” becomes an authorized treating physician. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). A referral based upon the treating physician’s independent medical judgment is considered a referral in the normal progression of authorized treatment. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Durrough v. Bridgestone/Firestone, W.C. No. 4-277-896 (June 30, 1997).
Here, the ALJ determined Dr. Leopoldt was an authorized treating physician effective March 27, 2002 because Dr. Krebs made a written referral to Dr. Leopoldt on June 17, 2002, which was retroactive to March 27, 2002. However, the ALJ found Dr. Krebs made no independent medical judgment on March 27 for the referral. Therefore, we agree with the respondents that the ALJ’s findings fail to support the conclusion that Dr. Leopoldt became authorized on March 27, 2002, due to a referral from Dr. Krebs.
However, the ALJ also found that after the attempted suicide the claimant treated with Ms. King at the direction of the employer. The ALJ further found:
“Claimant did follow up with Ms. King, who indicated on March 21, 2002, that she wanted claimant to see a psychiatrist. Claimant indicated she would be able to see Dr. Gerd Leopoldt. Ms. King concurred that Dr. Leopoldt should see her but she did not make a referral to Dr. Leopoldt.” (Finding of Fact 12).
As we read the ALJ’s findings, he determined Ms. King made no formal written referral to Dr. Leopoldt and thus, Dr. Leopoldt did not become an authorized treating physician pursuant to a referral in the normal progression of Ms. King’s treatment. However, a referral may be made either orally or in writing, and a referral is not invalid simply because it is “general” rather than “specific” in nature. City of Durango v. Dunagan, supra; Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995); Blake v. Crescent Electric Supply Co., W.C. No. 4-320-275 (October 16, 199 ); Eckard v. Weatherford International, Inc., W.C. No. 3-796-220 (August 29, 1988). Further, the mere fact the claimant requests a referral does not remove the referral from the “normal progression” of treatment if the referring physician exercises independent judgment regarding the advisability of the referral. Walling v. Big Ray’s Chop Shop, W.C. No. 4-489-603 (September 10, 2002).
Under these circumstances, the ALJ erred insofar as he determined there was no referral from Ms. King absent a formal written referral on March 21. However, the existence of a valid referral is a question of fact for the ALJ. City of Durango v. Dunagan, supra. Therefore, it is necessary to remand the matter to the ALJ for a redetermination of whether there was a valid referral from Ms. King which would support his finding that Dr. Leopoldt was an authorized treating physician on March 27, 2002.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 2003, is set aside.
IT IS FURTHER ORDERED that the ALJ’s order dated September 23, 2002 is reinstated insofar as it awarded temporary disability benefits. The order is set aside insofar as it determined Dr. Leopoldt is an authorized treating physician, and the matter is remanded to the ALJ for the entry of a new order on that issue, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ 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. 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 decision were mailed April 30, 2004 to the following parties:
Evelyn Briles, 13246 6100 Rd., Montrose, CO 81401
Kay Kirkland, Human Resources, Montrose Memorial Hospital, 800 So. 3rd St., Montrose, CO 81401
Colorado Hospital Ass’n Trust for Workers Compensation, c/o Mary Ann Donelson
Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
David B. Mueller, Esq., 101 So. 3rd St., #265, P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Margaret Keck, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy