W.C. No. 4-292-298.Industrial Claim Appeals Office.
January 5, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) which awarded Lana Davison (claimant) death benefits. The respondents contend the ALJ exceeded the scope of a prior order of remand. They further contend the ALJ’s findings of fact are not supported by substantial evidence insofar as they determine that the stress which caused the decedent to commit suicide was outside his usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. Finally the respondents contend the claimant is not entitled to death benefits but is limited to twelve weeks of medical impairment benefits. We affirm.
This factual background of this case is well documented in the recent opinion of the Supreme Court. Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004). Additional factual details are contained in our prior orders. Consequently, we will not discuss the facts in detail.
Pursuant to the Supreme Court’s order remanding the matter to “rehear” the claim the ALJ entered her order dated August 24, 2004. The ALJ, relying on the testimony of the claimant’s psychiatric expert, Dr. Miller, found the decedent suffered from the occupational disease of depression which began 4 to 5 years before his suicide on April 16, 1996. Further, the ALJ found the depression was primarily precipitated by the decedent’s duties as a police captain; and these duties involved “multiple psychologically traumatic events” associated with an “extraordinary workload” and “dealing with multiple unique personnel problems.” (Findings of Fact 37, 40, 41, 45(e)).
The ALJ concluded the decedent’s depression met the criteria for a compensable claim of “mental impairment” as defined by § 8-41-301(2)(a) through (d), C.R.S. 2004. In particular, the ALJ concluded the evidence was sufficient to establish that the stressors experienced by the decedent “were unique, outside a police captain’s usual experience, and would evoke significant symptoms of distress in a police captain in similar circumstances.” Consequently the ALJ concluded the claimant, as the decedent’s spouse, is entitled to death benefits uder § 8-42-114, C.R.S. 2004, and related statutes.
I.
On review, the respondents first contend the ALJ’s August 2004 order exceeded the scope of our Order of Remand dated May 18, 2000. The respondents argue the ALJ’s order considers events which occurred long after the onset of the decedent’s depression in 1991 or 1992, including the improper sting operation which occurred in 1995 and 1996. The respondents also argue the ALJ should not have considered the fact that after the decedent’s death the City increased the number of police captains from two to three. We find no error.
Our May 2000 Order of Remand determined that a previous ALJ’s order dated March 1, 1999, was erroneous because it found that the respondents’ psychiatric expert opined the decedent’s depression “was not precipitated by his employment.” Instead, we concluded that the expert opined th suicide was not precipitated by the employment, but offered no opinion concerning the original cause or causes of the underlying depression. We then remanded the matter for “a new order concerning the compensability of the claim,” and stated that we should “not be understood as expressing any opinions concerning the proper resolution of the underlying factual issues, including those involving causation.” We also declined to address some of the claimant’s arguments because they might be rendered moot by a new order.
The respondents’ contention notwithstanding, the May 2000 order constituted a “general remand” which authorized the ALJ to reconsider all of the evidence and enter new findings consistent with the views expressed in our order. Thus, we authorized the ALJ to make entirely new findings concerning the cause of the decedent’s depression and suicide, and did not limit the ALJ to considering only those potential causes which occurred in 1991 or 1992. It follows that the ALJ did not err when considering causative factors and events which occurred later in time See Musgrave v. Industrial Claim Appeals Office, 762 P.2d 686 (Colo.App. 1988) (when a remand orders a prescribed course of action a trial court must follow the appellate court’s direction, but if a case is remanded for further proceedings consistent with the appellate court’s views the remand is general and new findings are authorized).
In any event, the ALJ’s August 2004 order was entered pursuant to the Supreme Court’s opinion, which also constitutes a general remand. The Supreme Court’s order authorized the ALJ to “rehear” the case and remanded “for further proceedings consistent with this opinion.” In our view, the Supreme Court’s decision constitutes law of the case and the ALJ acted consistently with the Supreme Court’s order when entering the new findings. Nelson v. Elway, 971 P.2d 245, 249 (Colo.App. 1998) (issues presented to appellate court and rulings logically necessary to sustain its conclusions are law of the case and may not be contravened on remand).
II.
The respondents next contend that substantial evidence does not support the ALJ’s findings that the stressors cited by the ALJ as the cause of the decedent’s depression and ultimate suicide were outside the decedent’s usual experiences as a police officer, and that these stressors would have caused significant symptoms of distress in a worker in similar circumstances. In particular, the respondents contend the evidence does not support findings that the decedent experienced an unusually excessive workload which would distress a reasonable police captain, and that the personnel problems were unusual and would cause distress to a similarly situated police captain. We disagree with these arguments.
In Davison v. Industrial Claim Appeals Office, supra, the Supreme Court interpreted § 8-41-301(2)(a) and ruled that the questions of whether an alleged psychologically traumatic event is “generally outside a worker’s usual experience,” and whether the event would evoke “significant symptoms of distress in a worker in similar circumstances,” are questions of fact for determination by the ALJ. Further, a claimant need not present expert psychological “testimony” to establish these elements, but may rely on lay evidence. 84 P.3d at 1032-1034.
Because these issues are factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. Substantial evidence is that quantum of probative evidence which would support a reasonable belief in the existence of a fact without regard to conflicting evidence or inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. If the record equally supports two possible inferences, it is for the ALJ to determine which inference to draw. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117, 1119
(Colo.App. 2003). Further, the ALJ need only enter findings concerning the evidence which she determines is dispositive of the issues, and conflicting evidence and inferences are presumed to have been rejected Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
Initially, we note the Supreme Court has already opined the record in this case contains “some evidence” which would support the requisite findings. In footnote 7 of its opinion the court states that in th Davison case “Chief Tom Wagoner testified that the demands on Captain Davison would have caused Wagoner to experience significant stress.”84 P.3d at 1032-1033. With the court’s observation in mind, we consider the respondents’ specific arguments.
The respondents primary contention is that Finding of Fact 45 is not supported by substantial evidence to the extent the ALJ found the decedent experienced “multiple psychologically traumatic events” which were outside a police captains’s usual experience and would evoke significant symptoms of distress in a police captain in similar circumstances.” Indeed the respondents state the order does not describe the evidence on which this finding is based, and the respondents can “find no evidence in the record to support these findings.” The respondents also challenge Finding of Fact 41.
The respondents’ contention notwithstanding, we have no difficulty ascertaining the underlying basis for Finding of Fact 45. The ALJ explicitly found that the decedent’s job as a police captain in the operations division involved two primary sources of unusual stress including an extraordinary workload and the discipline of police officers who engaged in conduct which was embarrassing to the department. (Findings of Fact 40-42).
Moreover, there is substantial evidence to support these findings. As the ALJ found, after the decedent’s death the City created three division chiefs to handle the work previously managed by two. Chief Wagoner testified that he told a newspaper reporter that people “couldn’t comprehend” the pressure the decedent was under as a division commander and the department “works its people too hard.” Chief Wagoner told another reporter the decedent was under “tremendous stress” and was the “hardest working person” the chief knew. Dr. Miller ascribed the decedent’s stress to “increased responsibilities” and increased “administrative duties in a growing police force.” (Tr. October 2, 1998, Pp. 9-10, 46-47, 93). While there is some evidence which would permit a contrary evidence, the ALJ plausibly inferred from this record that the claimant was expected to perform even more duties than the usual police captain and that he experienced pressures in excess of those ordinarily experienced by a police captain.
Implicit in our conclusion is a rejection of the respondents’ assertion that events after the decedent’s death are not “logically relevant” to the stress the decedent experienced during his life. To the contrary, the ALJ plausibly inferred from the creation of a third captain’s position, at the recommendation of the City Manager and human resources director, that there was sufficient work for three captains although the same amount of work was previously handled by two. (Tr. October 2, 1998, P. 24). It is logical to infer from this evidence the decedent was performing substantially more work than the usual police captain.
For many of the same reasons, the ALJ reasonably inferred that a police captain in circumstances similar to those of the decedent would have experienced significant symptoms of distress. The chief’s statements concerning the amount of stress placed on commanders and the amount of work required are persuasive in this regard. This inference is also supported by statements contained in notes left behind by the decedent.
Similarly, the evidence supports the ALJ’s findings concerning the effects of the decedent’s duties as a disciplinary officer. The decedent was responsible for participating in or conducting due process hearings when an officer was potentially subject to serious discipline. In 1991 or 1992 the decedent was required to conduct a hearing involving an officer romantically involved with a high school student. The claimant described how the decedent was required to perform an unusual amount of work on the case and was disturbed by the ultimate results of the process and its effects on the image of the department. (Tr. January 22, 1999, Pp. 7-9). The decedent would also have been required to participate in the disciplinary proceedings involving the faulty and highly publicized prostitution sting. Chief Wagoner described this type of disciplinary proceeding as unpleasant and of sufficient emotional impact to cause him personal distress. Indeed, Chief Wagoner stated that he was “shocked and angered” upon learning of officers’ conduct during the prostitution sting. (Tr. October 2, 1998, Pp. 18-20, 33).
In this regard we note the statute does not require that the “psychologically traumatic” events be completely outside the worker’s experience, only that they be unusual. The ALJ was persuaded that officer conduct involving actual or potential public embarrassment was relatively unusual as evidenced by the high degree of procedural protections afforded the affected officer. Further, the ALJ was persuaded that these types of proceedings were of sufficient emotional impact to cause distress to even the highest ranking officer. While other inferences might have been drawn, we may not substitute our judgment for that of the ALJ on these factual issues. (Findings of Fact 41-42).
The respondents also dispute Finding of Fact 41 where the ALJ found that one officer was involved in “several incidents.” This finding is supported by the testimony of Chief Wagoner. (Tr. October 2, 1998, P. 15). Insofar as the respondents make other arguments concerning the sufficiency of the evidence, we find them to be without merit.
III.
The respondents next contend that if the claim is compensable the claimant is limited by § 8-41-301(2)(b), C.R.S. 2004, to receiving twelve weeks of medical impairment benefits. Thus, the respondents assert the ALJ erred in awarding “death benefits” pursuant to § 8-42-114 and related statutes. We disagree.
Section 8-41-301(2)(b) provides that where a claim is “by reason of mental impairment” the “claimant shall be limited to twelve weeks of medical impairment benefits,” which is inclusive of “any temporary disability benefits.” The limitation does not apply to a victim of a crime of violence.
As the ALJ recognized, the purpose of statutory construction is to effect the legislative intent, and to this end words and phrases in a statute should be given their plain and ordinary meanings. Further, the Act should be read as a whole and construed harmoniously so as to give sensible effect to all its parts. See Anderson v. Longmont Toyota, Inc.,
___ P.3d ___ (Colo. No. 03SC450, December 6, 2004). Also, when the General Assembly enacts legislation in an area it is presumed to be aware of relevant judicial precedents and to have approved judicial construction of a statute if the provision remains unchanged. United States Fidelity Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994).
We agree with the ALJ that the plain meaning of § 8-43-301(2)(b) has no relevance to the issue of death benefits. At the time subsection (2)(b) was enacted the General Assembly was fully aware of the right to death benefits provided by § 8-42-114. Further, the General Assembly was presumably aware of the longstanding “rule of independence” under which death benefits provided to dependents and wage loss and disability benefits provided to an injured worker are considered to create distinct rights and compensate for separate losses. Corbin v. Industrial Commission, 724 P.2d 677 (Colo.App. 1986), see also, Metro Glass Glazing, Inc. v. Orona, 868 P.2d 1178 (Colo.App. 1994).
Section 8-41-301(2)(b) makes no reference at all to death benefits, but creates a limitation on “medical impairment benefits.” Medical impairment benefits represent a class of permanent partial disability (PPD) benefits which compensate an injured employee for permanent disability under the scheme established by § 8-42-107, C.R.S. 2004. City of Thornton v. Replogle, 888 P.2d 782, 784-785 (Colo. 1995). Moreover, PPD benefits are not payable to dependents except where the decedent reaches maximum medical improvement (MMI) before death, and consequently the right to PPD benefits “accrues” to the decedent before the death. See § 8-41-503(2), C.R.S. 2004; Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996).
Because the statute creates a limitation on PPD benefits and contains no reference to death benefits, the plain language of the statute does not support the construction urged by the respondents. Indeed, the legislature has been quite explicit when it desires to impose limitations on death benefits, as is the case with the offset for Social Security death benefits contained in § 8-42-114. If the General Assembly wished to limit death benefits where the death results from mental impairment, we believe it would have done so expressly. Cf. City of Thornton v. Replogle, supra (if legislature wished to impose a twelve week limitation on temporary disability benefits in addition to PPD benefits it would have expressly done so). Moreover, a consistent and harmonious reading of the Act does not support the supposition that the General Assembly intended to limit dependents to receiving twelve weeks of PPD benefits. A harmonious reading of the Act recognizes that death benefits are distinct from PPD benefits, and the limitation on “medical impairment benefits” applies in those cases where PPD benefits are payable to an eligible claimant, not to cases where the claimant is seeking death benefits based on dependency.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 24, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Lana Lea Davison, Loveland, CO, Bettie Greenberg, Risk Manager, City of Loveland, St., Loveland, CO, Patricia Morgan, CIRSA, Denver, CO, John Duvall, Esq. and Caroline Blackwell, Esq., City of Loveland, Loveland, CO, Jan A. Larsen, Esq., Fort Collins, CO, (For Claimant).
Anne Smith Myers, Esq. and Allison R. Ailer, Esq., Denver, CO, (For Respondents).