W.C. No. 4-492-078.Industrial Claim Appeals Office.
June 5, 2003.
ORDER OF REMAND
The claimant seeks review of a supplemental order of Administrative Law Judge Mattoon (ALJ) which found the claimant’s depression was not causally-related to the industrial injury. The claimant contends the ALJ incorrectly gave presumptive effect to the opinion of a Division-sponsored independent medical examination (DIME) physician concerning the cause of the depression. The claimant further contends the findings of fact are not sufficient to support appellate review of the ALJ’s conclusion that the injury did not cause the depression, and that the evidence does not support the findings of fact. We set the order aside and remand for entry of a new order.
The claimant sustained a compensable wrist injury in January 2001, underwent surgery, and was placed at maximum medical improvement (MMI) by the treating physician on August 31, 2001. Although the claimant returned to light duty work after the injury, the employer terminated her on September 17, 2001. The basis of the termination was that the employer could not accommodate the claimant’s permanent restrictions caused by the injury.
The claimant returned to the treating physician in July 2002 reporting increased hand pain and symptoms of depression. The treating physician believed the claimant’s depression was related to the effects of the injury as well as its impact on her “vocational outlook.” (Finding of Fact 9; Tr. Pp. 10-11). The treating physician prescribed Paxil to treat the depression.
Before returning to the treating physician, the claimant underwent a DIME, apparently on the issues of MMI and medical impairment. The DIME opined the claimant reached MMI on September 8, 2001, and assigned a 14 percent upper extremity impairment for the wrist injury. The DIME physician also noted the claimant gave a history of anxiety attacks and depression after being terminated from her employment. However, the DIME physician stated these symptoms were not “eligible” for an impairment rating because they occurred after the termination and “are not directly related to the injury.”
The respondents requested the claimant to undergo an evaluation by Dr. Gutterman, a psychiatrist. Dr. Gutterman examined the claimant on August 14, 2002. He opined the claimant suffered from a long-standing anxiety disorder and a “mild adjustment disorder” resulting from the termination of employment. Dr. Gutterman believed the adjustment disorder was in remission, and the claimant did not suffer any permanent mental impairment from the injury. In addition to anger at the respondent-employer stemming from the termination, Dr. Gutterman noted the claimant was also worried about unrelated personal health issues and the health of a grandson.
Under these circumstances, the ALJ found the claimant’s “mental condition” was not causally related to the industrial injury. First, the ALJ determined the claimant failed to overcome by clear and convincing evidence the DIME physician’s conclusion that the psychological problems were caused by the termination, not the industrial injury. In this regard, the ALJ found that Dr. Gutterman’s opinions concerning causation were more persuasive than the treating physician’s, and that Dr. Gutterman’s opinions support the DIME physician’s opinion.
Next, the ALJ found the claimant failed to prove a compensable claim for “mental impairment” under the requirements of § 8-41-301(2)(a), (2)(a.5), and (2)(c), C.R.S. 2002. Specifically, the ALJ determined the claimant’s mental problems stemmed, in part, from the termination from employment. Therefore, the ALJ concluded the impairment could not arise out of the employment, and is a circumstance common to all fields of employment. The ALJ also found the termination was not a circumstance generally outside a worker’s usual experience, and would not have caused significant symptoms of distress in a worker in similar circumstances. Finally, the ALJ determined the impairment did not arise primarily from the employment because the mental problems “stemmed just as much if not more from [the claimant’s] worries over her grandson’s health and her own deteriorating health.”
The ALJ also recognized that in Martinez v. Mac-Bestos, Inc.,
W.C. No. 4-291-444 (October 13, 2000), we held that depression caused by a claimant’s psychological reaction to physical restrictions and consequent economic loss constitutes a compensable consequence of an industrial injury. However, the ALJ distinguished Martinez from this case because, the ALJ stated, the “circumstance which was connected to [the claimant’s] industrial injury, that is, being terminated, consisted mainly of anger at being abandoned by the employer, and not from fear of being unable to work.” The ALJ further stated the DIME physician “probably relied on an incorrect understanding of the law,” but was ultimately correct in concluding the psychological condition did not arise from the hand injury.
On review, the claimant contends the ALJ erred in giving special weight or presumptive effect to the DIME physician’s opinion concerning the cause of the claimant’s mental condition. The claimant argues she was not challenging the DIME physician’s impairment rating or the MMI date selected by the DIME physician. Therefore, she reasons the clear and convincing standard does not apply. The claimant further contends the findings are insufficient to support appellate review because it is impossible to determine what legal standard the ALJ applied in finding the depression unrelated to the injury. Specifically, the claimant argues that all three physicians who examined the claimant agreed the termination was a trigger for the psychological problems. The claimant cites the Martinez decision as authority for the proposition that, under these circumstances, the depression is a compensable consequence of the injury. Because the ALJ may have misapplied the law in determining the psychological problems are not compensable, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 2002.
First, we agree with the claimant that the ALJ erred insofar as she afforded presumptive weight to the DIME physician’s opinion that the claimant’s psychological problems are not causally related to the industrial injury. It is true that under § 8-42- 107(8)(b)(III), and (8)(c), a DIME physician’s finding that a particular condition is or is not causally related to the industrial injury is binding unless overcome by clear and convincing evidence. Eg. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998). However, these provisions apply when a party challenges the DIME physician’s determination of MMI or the DIME physician’s permanent impairment rating. Causation is subject to the ordinary preponderance of the evidence standard when a party is not challenging a DIME physician’s impairment rating or MMI determination See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) (where issue was cause of worsened condition on reopening DIME physician’s opinion not entitled to presumptive effect); see also Faulkner v. Inudstrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000) (causation is a threshold issue and DIME physician’s opinion concerning whether or not claimant sustained compensable injury in the first instance not entitled to presumptive effect).
Here, the claimant was not challenging the DIME physician’s determination she reached MMI on September 8, 2001, nor was she challenging the DIME physician’s failure to assess an impairment rating for the psychological problems. Rather, the claimant was arguing that after she was placed at MMI in September 2001, she experienced a condition (depression and anxiety attacks) which required medical treatment. (Tr. P. 3). Thus, the DIME physician’s opinion concerning the cause of the depression and anxiety attacks was not entitled to any special weight because these conditions arose after MMI, and the DIME was not tasked with addressing the cause of such symptoms. Cordova v. Industrial Claim Appeals Office, supra.
Nevertheless, the respondent contends that even if the DIME physician’s opinion is not entitled to presumptive effect, the ALJ found as a matter of fact that the psychological problems were not caused by the industrial injury. According to the respondent, this factual finding is supported by the evidence and must be upheld on review. We disagree with this analysis.
First, we adhere to the principles set forth in Martinez v. Mac-Bestos, supra. In Martinez the issue was whether the DIME physician correctly found the claimant was at MMI, or whether the claimant needed treatment for depression to reach MMI. The ALJ determined the claimant failed to overcome the DIME physician’s finding of MMI because, as the DIME physician found, the depression was not caused by the injury, but rather a combination of the claimant’s permanent work limitations, education, and the unavailability of work which the claimant could perform. We held that if a claimant’s experiences a psychological reaction to the physical limitations caused by the injury, or to the economic losses caused by the physical effects of the injury, the psychological reaction constitutes a compensable consequence of the industrial injury and respondents are liable for treatment of the condition. This ruling was based on the conclusion that such psychological reactions may be considered natural and proximate results of the industrial injury. See Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002) (chain of causation analysis applies where industrial injury leaves body in weakened condition and the weakened condition plays a causative role in subsequent injury). A copy of the Martinez decision is included in the record, and we adhere to the principles applied in that case, and our discussion of the authorities cited therein.
The ALJ sought to distinguish Martinez because she stated, in the Conclusions of Law, that the claimant’s psychological condition consisted “mainly of anger” at the employer’s abandonment, not “fear of not being able to work.” Further, the ALJ found as fact that at least half of the claimant’s mental problems were attributable to the preexisting worries over personal and family health issues.
It is true that the question of whether a particular condition is the natural and proximate result of industrial injury or an intervening event is one of fact for the ALJ. Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002). However, preexisting disease or infirmity does not disqualify a claim for benefits if the industrial injury “aggravates, accelerates, or combines with the disease or infirmity to produce the disability” or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Further, the industrial injury need not be the sole or even the primary cause of the need for treatment provided it is a “significant” cause in the sense that the injury plays a direct causal role in the need for treatment. Seifried v. Industrial Claim Appeals Office, 736 P.2d 1262 (Colo.App. 1986).
Here, the ALJ appears to have found that at least some of the claimant’s mental condition was related to economic fears stemming from the injury-related termination of employment. (Finding of Fact 18). Under the Martinez decision, such concerns would constitute compensable consequences of the injury. However, the ALJ made no finding as to whether the injury-related concerns combined with the claimant’s personal concerns to produce at least part of the claimant’s psychological problems. Consequently, the findings of fact are insufficient to support appellate review of the basis of the ALJ’s legal conclusion, or contradict that conclusion. The matter must be remanded for entry of a new order containing specific findings of fact and conclusions of law resolving the causation issue in accordance with the principles set forth herein.
In reaching this result, we are cognizant that the ALJ treated this claim as one for mental impairment within the meaning of § 8-41-301(2), and determined the claimant failed to meet the various statutory elements of proof cited above. However, in our view, the ALJ’s findings are not congruent with application of the mental impairment statute.
It is certainly true that the claimant’s injury occurred after July 1, 1999, and is governed by the 1999 amendments to § 8-41-301(2). 1999 Colo. Sess. Laws, ch. 103 at Pp. 298-300. Those amendments expanded the definition of “mental impairment” to include a “recognized, permanent” disability. Further, the amendments added subsection (2)(a.5), which provides that mental impairment “includes a disability arising from an accidental physical injury that leads to a recognized permanent psychological disability.”
The effect of these amendments was to expand the scope of the mental impairment statute because prior to 1999, the statute did not apply in cases where the “stimulus” to the mental impairment was a physical injury. Rather, the special proof requirements of the statute were limited to cases where the stimulus was purely mental. Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996); Hewitt v. Discount Tire Co., W.C. No. 4-460-517 (March 24, 2003); Alvarado v. Wendy’s International, W.C. No. 4-474-689 (March 12, 2003).
However, the statute 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). Here, the claimant did not allege a permanent mental condition. In fact, the ALJ seems to have credited Dr. Gutterman’s opinion that, insofar as the termination from employment caused emotional problems, those problems remitted and the claimant did not suffer any permanent disability. (Finding of Fact 15). Thus, the ALJ erred insofar as she applied the special proof criteria contained in § 8-41-301(2) in finding the claimant proved no causal relationship between the injury and the psychological problems.
IT IS THEREFORE ORDERED that the ALJ’s supplemental order dated February 12, 2003, is set aside, and the matter is remanded for entry of a new order consistent with the view expressed herein. Additional evidentiary proceedings are not authorized by this order, and the new order shall be entered based on the existing record.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
Copies of this decision were mailed June 5, 2003 to the following parties:
Christine Chavarria, 31424 Acoma Rd., Pueblo, CO 81006
Dayton Hudson Corporation/Target Distribution Center, 34800 United Ave., Pueblo, CO 81001-4882
Crystal Henderson, Constitution State Service Co., c/o The Travelers Companies, P. O. Box 173762, Denver, CO 80217-3762
Lawrence D. Saunders, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Lawrence D. Blackman, Esq., and Lynda S. Newbold, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondent)
By: A. Hurtado