W.C. No. 4-522-095Industrial Claim Appeals Office.
May 2, 2003
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant suffered compensable mental impairment and awarded workers’ compensation benefits. We set aside the order and remand the matter for a new order.
The claimant suffered an industrial injury to her right shoulder on October 30, 2001. The injury was surgically treated. The ALJ found that after reporting the injury, the claimant became anxious, depressed, and despondent due to her physical limitations and uncertainty about whether the injury would be found compensable. The ALJ also found the claimant experienced confusion, frustration, anxiety, and stress about the need for a second surgery.
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 ALJ found 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. The ALJ therefore determined the claimant suffered compensable mental impairment and awarded temporary total disability benefits. The ALJ also found Dr. Leopoldt is an authorized treating physician retroactive to March 2002.
On review the respondents contend, inter alia, that the ALJ erred in failing to require the claimant to comply with the evidentiary requirements of § 8-41-301(2)(a), C.R.S. 2002 to establish compensable mental impairment. 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.”
Relying on Oberle v. Industrial Claim Appeals Office, 919 P.2d 918
(Colo.App. 1996), and Colorado AFL-CIO v. Donlon, 914 P.2d 396
(Colo.App. 1995), the claimant argues that § 8-41-301(2)(a) only applies to mental impairment awards where there is no physical injury. However, the claimant’s reliance on Oberle and Donlon is misplaced.
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, ___ P.3d ___ (Colo.App. No. 02CA0922, January 2, 2003); Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992); City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995). As argued by the claimant, the court in Oberle v. Industrial Claim Appeals Office, supra, 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. It follows tha Oberle and Donlon, which were decided under the predecessor statute, are no longer good law concerning the distinction between permanent mental impairment caused by an emotional stimulus and mental impairment that is a consequence of a compensable physical injury for injuries after July 1, 1999. ee Hughes-Choyce v. The Childrens Hospital, W.C. No. 4-444-713
(October 24, 2002).
The claimant’s further arguments notwithstanding, nothing in Haynes v. City and County of Denver, W.C. No. 4-457-807 (September 20, 2002) Hughes-Choyce v. Childrens’ Hospital, supra, or Davison supports the ALJ’s conclusion that § 8-41-301(2)(a.5) does not govern this claim. None of those cases involved any physical injury. Rather, the claimants in Haynes and Hughes-Choyce alleged work-related emotional stress caused mental impairment that produced physical symptoms. In Davison, the emotional stressors allegedly caused depression which in turn caused the worker to commit suicide. Consequently, none of these cases addressed the issue presented here.
Here, the claimant contends that her mental impairment is the consequence of the work-related physical injury. Under these circumstances, the ALJ erred in finding the claimant proved compensable mental impairment without requiring the claimant to comply with the requirements of § 8-41-301(2)(a). Consequently, we set aside the order and remand the matter to the ALJ to redetermine whether the claimant suffered compensable mental impairment under this statute. Based on that determination the ALJ shall enter a new order on the issues of temporary disability and medical benefits.
In view of this disposition it is premature to consider the respondents’ further arguments. Consequently, we have not considered the respondents’ contention that the alleged mental impairment is based on facts common to all fields of employment and non- compensable litigation stress. See Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082
(Colo.App. 2002). Nor do we consider the respondents’ contention that the ALJ erroneously approved a retroactive referral to Dr. Leopoldt.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 23, 2002, is set aside and the matter is remanded for a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed May 2, 2003 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. Hurtado