W.C. No. 4-370-131Industrial Claim Appeals Office.
September 25, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ), which determined the claimant failed to prove compensable mental impairment, and therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
In 1997, the claimant was employed as a full-time, salaried administrative assistant in the emergency service office of Chaffee County. In July 1997, the volunteer emergency care technicians staged a walkout. This resulted in additional duties for the claimant, which included driving an ambulance. A few weeks later the department’s Operations Manager resigned and the claimant was required to assume greater responsibilities. In December 1997 a new Operations Manager was hired and the claimant obtained some relief. In March 1998, the claimant resigned from the employment.
Prior to 1997, the claimant was diagnosed with Raynaud’s Disease. The claimant alleged that stress caused by her additional work duties during the strike aggravated her pre- existing Raynaud’s Disease and resulted in mental impairment.
Dr. Sanders testified that Raynaud’s Disease is associated with symptoms of color changes, coldness and pain in the hands, feet, arms or legs. In severe cases the patient develops ulcers at the tips of the fingers leading to the loss of the fingernails. It is undisputed Raynaud’s Disease may be aggravated by stress and exposure to cold temperatures. In January 1998, the claimant sought treatment from Dr. Leonardi for an abscess on her left middle finger. Dr. Leonardi treated the abscess by removing the fingernail.
Former § 8-41-301(2)(a), C.R.S. 1998 [amended 1999 Colo. Sess. Laws. Ch. 103 at 300], which applies to this 1997 injury claim, provides that “mental impairment” is:
“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.”
Subsection 8-41-301(2)(b) requires that the mental impairment which is the basis of the workers’ compensation claim must arise “primarily from the claimant’s then occupation and place of employment.” Subsection 8-41-301(2)(c) requires that the mental impairment claim “cannot be based in whole, or in part, upon facts and circumstances that are common to all fields of employment.
The ALJ determined that work and not work-related stress may have been causative factors in the aggravation of the Raynaud’s Disease, but she was not persuaded that the work stress was the primary cause of the claimant’s flare up of the Raynaud’s Disease. The ALJ also found the claimant failed to prove that her mental impairment was caused by a traumatic event which is generally outside a worker’s usual experience. In support the ALJ relied on evidence the claimant’s co-workers were equally affected by the extra duties and did not seek medical treatment. The ALJ also determined that stress for salaried employees “who pick up extra duties during a walkout and/or during the period that the office was shorthanded is common to all fields of employment.”
In addition, the ALJ noted that a claim of mental impairment may not arise out of disciplinary action, demotion, promotion, termination or other similar action taken in good faith by the employer. Insofar as the claimant alleged stress from the resignation of the Operations Manager, the ALJ found that there was no evidence the employer acted in bad faith.
On review the claimant contends the ALJ’s pertinent findings of fact are not supported by the record. In particular the claimant contends the ALJ erred in finding a labor “strike” is common to all fields of employment. We perceive no reversible error by the ALJ.
Initially, we note that the claimant’s Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us for review apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not considered the Division of Workers’ Compensation file.
The statutory provision that precludes a mental impairment claim based on “facts and circumstances that are common to all fields of employment” refers to conditions generally inherent in every work situation. See Holme, Roberts and Owens v. Industrial Claim Appeals Office, 800 P.2d 1332 (Colo.App. 1990). A condition is “common” to all fields if it is usual, ordinary or customary. White Star Linen v. Industrial Claim Appeals Office, 787 P.2d 189 (Colo.App. 1989); Hungerford-Courtaway v. Eagle Picher Industries, Inc., W.C. No. 4-257-897 (February 14, 1997).
The cause or causes of a claimant’s mental impairment, and the commonality of those causes are questions of fact to be resolved by the ALJ. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Accordingly, we are bound by the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; General Cable Co. v. Industrial Claim Appeals Office, supra. Where the evidence is subject to conflicting inferences, we must defer to the ALJ’s determination of the inferences to be drawn. Furthermore, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence and we decline the claimant’s invitation to do so Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1067, March 16, 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant did not allege mental impairment from the “strike.” The claimant alleged that as a result of the “strike” the office was in “turmoil” and she had to assume additional duties which aggravated her pre-existing condition. (Tr. pp 25, 38).
The claimant admitted that “turmoil” and “job instability” are common to all fields of employment. (Tr. pp. 36, 38). Consequently, there is substantial evidence from which the ALJ reasonably inferred that the stress which is the basis of the mental impairment claim is based in whole or in part, upon facts and circumstances that are common to all fields of employment. The claimant’s further arguments on this issue have been considered and are unpersuasive.
Next, the claimant testified that she was in the habit of dressing warm for ice fishing. (Tr. p. 46). However, she also admitted that her hands and feet still get cold. (Tr. p. 57). Further, Dr. Sanders noted a ten year history of Raynaud’s Disease and a three history of extremity ulcers preceding the alleged industrial injury. (Sanders depo. p. 11). Under these circumstances, the record contains substantial evidence to support the ALJ’s inference that the claimant’ ice fishing may have been a causative factor in the aggravation of the Raynaud’s Disease.
Further, the claimant admitted she was unaware of any other co-worker who required medical treatment as a result of the extra duties assigned during the strike. This evidence supports the ALJ’s determination that the claimant failed to prove the mental impairment was caused by a “psychologically traumatic event” which would invoke significant symptoms of distress in a worker in similar circumstances.
Conversely, the record does not support the ALJ’s finding that Dr. McLeod’s report confirmed the existence of non-work stressors. (Finding of Fact 14; Conclusions of Law). Contrary to the ALJ’s determination, Dr. McLeod did not opine that the claimant’s “personal” problems “rose to an all time high” in August 1997. Instead, Dr. McLeod stated that the claimant’s condition worsened in August 1997 when the strike required her to assume extra duties and “other personnel problems rose to an all time high.” (Emphasis added) (McLeod September 16, 1998).
Nevertheless, the claimant’s failure to sustain her burden to prove any one of the statutory requirements is fatal to a claim of mental impairment. Stephens v. Carlin Dodge, W.C. No. 4-145-300
(May 18, 1995), aff’d., Stephens v. Carlin Dodge (Colo.App. No. 96CA0273, August 15, 1996) (not selected for publication). Because the record supports the ALJ’s determinations that the claimant failed to prove the mental impairment was caused by a traumatic event, and because the claim is based on facts and circumstances common to all fields of employment, the ALJ did not err in denying the claim. See McCallum v. Dana’s Housekeeping, 940 P.2d 1022
(Colo.App. 1996). Consequently, we need not consider whether the ALJ erred in finding the claimant failed to prove the mental impairment arose primarily from her employment or whether the ALJ misapplied the law in finding that the claimant’s stress following the resignation of the Operations Manager reflected the employer’s good faith personnel action.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 6, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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 September 25, 2000 to the following parties:
Kristina I. Crumpton, 29553 CR 357, Buena Vista, CO 81211
Chaffee County, P.O. Box 699, Salida, CO 81201-0699
Jim Vail, County Technical Services, Inc., 1700 Broadway, #1512, Denver, CO 80290
Becky Venes, Chaffee County, P.O. Box 699, Salida, CO 81201
William Alexander, Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Melissa J. Loman, Esq., David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
BY: A. Pendroy