W.C. No. 4-457-807Industrial Claim Appeals Office.
September 20, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant failed to prove compensable mental impairment under § 8-41-301(2), C.R.S. 2001 and, therefore, denied the claim for workers’ compensation benefits. We affirm.
The claimant, who is an African-American, was employed by the Department of Parks and Recreation for the City and County of Denver. In April 1996, the claimant was promoted from Recreational Coordinator to Recreational Supervisor. During the probationary promotion period the claimant received performance evaluations which were critical of his skills as a supervisor. As a result, the probationary period was extended in October 1996.
In November 1996, the claimant attended a leadership seminar in New Mexico. The claimant contended he was the victim of racial discrimination during the seminar because he was shunned by co-workers and was lodged at a different hotel than the co-workers. The employer’s witnesses testified the claimant was given a different hotel assignment because he was a late registrant and that they did not sit with the claimant during the seminar because they were required to attend different instruction levels.
While in New Mexico, the claimant was involved in a one car accident with a motor vehicle leased by the employer. The claimant initially told the police and his co-workers that he was not involved in the accident. However, he later confessed that he backed the car into a light pole. Based upon the claimant’s dishonesty and the claimant’s prior performance problems, the claimant did not pass the probationary period and was returned to his former position of Recreation Coordinator. The claimant appealed the demotion to the Career Service Board (Board) of the City and County of Denver and alleged race discrimination. The Board rejected the claimant’s allegations. The claimant then filed civil rights complaints against the co-workers who were involved in rescinding the promotion. That case was ultimately settled.
In 1999 the claimant sought medical treatment for work-related stress. On April 3, 2000, the claimant was granted leave under the Family Medical Leave Act of 1993. The claimant also filed a workers’ compensation claim which alleged an injury on March 30, 2000 from work-related stress. The claimant voluntarily resigned the employment on September 29, 2000, when his medical leave expired and the employer failed to offer him a job assignment that did not require him to work with the co-workers named in the Civil Rights action.
Section 8-41-301(2)(a) provides that “mental impairment” is:
“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.” The statute further provides that “[A] mental impairment shall not be considered to arise out of disciplinary action, work evaluation, job transfer, lay-off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer.”
The ALJ found the claimant failed to prove he was subjected to racial discrimination or any psychologically traumatic event outside a workers’ usual experience which would evoke significant symptoms of distress in a worker in similar circumstances. Further, the ALJ determined the respondent proved it acted in good faith in evaluating the claimant’s job performance and issuing the demotion. Therefore, the ALJ determined the claimant failed to prove his mental impairment arose out of and in the course of employment.
On review, the claimant first contends § 8-41-301(2)(a) does not apply to this claim because the claimant suffered “physical” injuries. We disagree.
The evidentiary requirements of § 8-41-301(2) apply if the mental impairment is the product of a purely emotional stimulus or an accidental physical injury that leads to a recognized permanent psychological disability. See § 8-41-301(2)(a.5), C.R.S. 2001 [enacted 1999 Colo. Sess. Laws, Ch. 103 at 299 and applicable to injuries that occur after July 1, 1999]; DuShane v. Beneficial Colorado, Inc., W.C. No. 4-218-217, July 17, 1996, aff’d. DuShane v. Beneficial Colorado, Inc.,(Colo.App. No. 96CA1404, December 27, 1996) (not selected for publication). As argued by the claimant, the court in Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996), concluded that where the claimant’s psychological injury is the result of a physical injury, the requirements of § 8-41-301(2)(a) are not implicated.
Here, the claimant alleged he experienced hypertension and gastrointestinal distress after he sustained as a result of the mental impairment. (See Tr. May 17, 2001, p. 14). However, the claimant did not contend that the mental impairment was the result of a physical injury. Consequently, this claim is factually distinguishable from Oberle and insofar as Oberle remains good law, the ALJ did not err in requiring the claimant to sustain the elements of proof required by § 8-41-301(2)(a).
Next, the claimant contends the ALJ failed to consider the claimant’s physical and mental work injuries prior to the motor vehicle accident. In particular, the claimant contends the ALJ erroneously focused on his poor judgment and dishonesty following the motor vehicle accident instead of the racial discrimination and segregation which provoked the claimant’s poor judgment.
We are bound by the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Where the evidence is subject to conflicting inferences, we must defer to the ALJ’s determination of the inferences to be drawn. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Furthermore, the ALJ is not required to issue findings of fact on every piece of evidence, just those found persuasive and determinative of the disputed issues. General Cable Co. v. Industrial Claim Appeals Office supra.
The claimant’s arguments notwithstanding, there is substantial evidence in Dr. Klein’s medical report dated April 20, 2001 to support the ALJ’s implicit determination the claimant failed to prove he suffered compensable mental impairment. Further, the testimony of the employer’s witnesses support the ALJ’s finding that the employer did not engage in segregation or discrimination during the leadership seminar in New Mexico.
The claimant’s arguments essentially request that we reweigh the evidence on review. We have no authority to 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, 8 P.3d 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant’s further arguments have been considered and do not alter our conclusions. The claimant contends the ALJ erroneously allowed the respondents to “utilize matters, documents and issues not timely served on the claimant.” (See Partial Petition to Review). However, the claimant does not identify the basis for this contention. Under these circumstances, we decline to address the issues on review.
We also note that the claimant proceeded pro se at the hearing. Although the ALJ offered the claimant an opportunity to consult with an attorney, the record does not support the claimant’s contention that the ALJ found the claimant was a “mentally impaired person who was obviously not able to alone properly represent himself.” (See Tr. p. May 17, 2001, p. 4; Partial Petition to Review).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 16, 2001, 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. 2001. 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 20, 2002 to the following parties:
Duane Haynes, 2859 Garfield St., Denver, CO. 80205
City and County of Denver, 1675 Broadway, #1600, Denver, CO. 80202
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO. 80204 (For Claimant)
Olivia L. Hudson Smith, Esq., 1675 Broadway, #1600, Denver, CO 80202 (For Respondent)
BY: A. PENDROY