W.C. No. 4-271-352Industrial Claim Appeals Office.
July 10, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wells (ALJ) dated January 30, 1997, which determined that the claimant suffered a compensable injury and awarded benefits. We affirm.
This matter was previously before us. On November 12, 1996, we set aside the ALJ’s prior order which determined that the claimant sustained compensable “mental impairment” as defined by § 8-41-301(2), C.R.S. (1996 Cum. Supp.). Insofar as pertinent, §8-41-301(2)(a), provides that:
“A claim of 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).
We concluded that the ALJ’s findings of fact were insufficient to permit appellate review of the respondents’ contention that the claim is not supported by the opinion of a licensed physician or psychologist. Consequently, we remanded the matter to the ALJ for additional findings of fact and the entry of a new order.
On remand the ALJ entered his order dated January 30, 1997, in which he found that the claimant was employed as the executive director of a non-profit corporation which opened a thrift store. The ALJ found that during the “upstart and initial operation” of the thrift store the claimant worked 12-14 hours a day, 7 days a week and slept only 4 hours a day.
On July 25, 1995, the claimant was hospitalized due to fatigue, stress and depression with suicidal ideation. The ALJ found that the “fatigue” was a physical injury caused by the claimant’s employment. Under these circumstances, the ALJ determined that it was unnecessary to address the requirements of § 8-41-301(2)(a).
Nevertheless, the ALJ found that the upstart and initial operation of the thrift store, which was a financial failure, constituted a psychologically traumatic event which would evoke significant symptoms of distress in a reasonable worker under similar circumstances. The ALJ also found that there is “evidence from several physicians that the Claimant suffered a mental impairment.” Therefore, the ALJ determined that the claimant suffered a compensable injury and ordered the respondents to pay benefits.
On review the respondents argue that the ALJ erred in finding that the claimant satisfied the proof required by §8-41-301(2) for a claim of compensable mental impairment. However, we agree with the claimant’s contention that, in view of the ALJ’s finding of a “physical injury,” it is immaterial whether the claimant satisfied the requirements of § 8-41-301(2).
Section 8-41-301(2) applies to cases where the claimed disability is based on emotional or psychological causes and there is no physical injury. Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996). However, where the claim is based on a physical component which independently contributes to the injury the claim is not subject to the requirements of §8-41-301(2). Oberle v. Industrial Claim Appeals Office, supra Compare DuShane v. Beneficial Colorado, Inc., (Colo.App. No. 96CA1404, December 27, 1996) (not selected for publication) [where sole stimulus of claimant’s depression, nausea and diarrhea was emotional stress the claim was governed by § 8-41-301(2)].
Here, the respondents do not contest the ALJ’s factual determination that the claimant’s employment caused a physical injury, and that the physical injury is the cause of the claimant’s hospitalization and need for treatment. Therefore, we do not consider whether the record supports the ALJ’s finding of a “physical injury.”
Further, the ALJ’s finding that the claim is based on a physical component removes the claim from the limitations of § 8-41-301(2). Therefore, the claimant was not required to establish the proof required by § 8-41-301(2).
Moreover, the ALJ’s finding that the claimant suffered a disabling physical injury supports the conclusion that the claimant suffered a compensable injury. See § 8-41-301(1), C.R.S. (1996 Cum. Supp.). Therefore, it is unnecessary for us to consider whether the claimant also satisfied the proof required by § 8-41-301(2) for a claim of compensable “mental impairment.”
IT IS THEREFORE ORDERED that the ALJ’s order dated January 30, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed July 10, 1997 to the following parties:
Samuel G. Brown, 1330 Marshall, Kinsley, KS 67547
Family Inn of Colorado Springs, c/o CCIA, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq., (Interagency Mail).
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909, (For the Claimant).
David L. Smith, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701, (For the Respondents).
BY: ________________________________