W.C. No. 4-368-095Industrial Claim Appeals Office.
February 13, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied a petition to reopen based on worsened condition. The claimant argues the ALJ erroneously found that her worsened condition, allegedly caused by stress associated with the litigation process, did not constitute a “quasi-course of employment injury” justifying the reopening. The claimant further contends pertinent findings of fact are not supported by the record, and that the ALJ misapplied the doctrine of collateral estoppel on the issue of causation. We affirm.
The claimant sustained a compensable injury on November 12, 1997, when she fell at work striking her head and neck. Prior to this injury, the claimant had a documented history of migraine headaches, dizziness, imbalance, and other problems.
The 1997 injury was found to have aggravated, at least temporarily, the claimant’s migraine headaches and dizziness. The claimant came under the care of Dr. Parry, who referred the claimant to numerous other physicians. Among these physicians were Dr. Esses and Dr. Politzer who respectively treated the claimant for balance and visual problems. The claimant was also treated for depression.
In November 1999 the claimant underwent a division-sponsored independent medical examination (DIME). The DIME physician opined the claimant reached maximum medical improvement (MMI) on November 3, 1999. Initially, the DIME physician assigned a 9 percent whole person medical impairment consisting of 4 percent impairment for a specific disorder of the cervical spine and 5 percent impairment for “mild post-concussive emotional impairment.” However, in a deposition, the DIME physician retracted the impairment rating and opined the claimant had no rateable impairment caused by the 1997 injury. This opinion resulted from the DIME physician’s viewing of videotapes which showed the claimant performing various activities which appeared to be inconsistent with the level of symptoms and disability which the claimant was reporting to the treating physicians.
The claimant sought a hearing to overcome the DIME physician’s opinions concerning MMI and impairment, and the hearing was held on March 6, 2000. In an order dated March 28, 2000, the ALJ found the claimant failed to overcome the DIME physician’s findings concerning the date of MMI and the impairment rating. In so doing, the ALJ stated that “even if claimant has migraine headaches and vistibular dysfunction, these conditions are preexisting and are not caused or aggravated by her 1997 work injury.”
In July 2000 the claimant filed an application for hearing listing the issues as petition to reopen and medical benefits. The claimant alleged that her condition had worsened because of increasing depression and visual problems.
On October 26, 2000, the ALJ entered an order denying be petition to reopen. The ALJ explicitly found the claimant “failed to prove by a preponderance of the evidence that she is entitled to reopen her claim due to change of condition since the date of MMI or the date of the last hearing.” In so doing, the ALJ noted the claimant reported to Dr. Esses “that her condition was deteriorating regarding visual movements.” However, the ALJ also noted the existence of the videotapes showing the claimant performing activities inconsistent with the symptoms she was reporting to her physicians, and the ALJ also noted that two physicians reported the claimant’s examinations were suggestive of “malingering.” Further, the ALJ expressly rejected Dr. Parry’s opinion that the claimant is not at MMI.
The ALJ also found the claimant’s depression “apparently worsened after the March 6 hearing and especially after the March 28, 2000 order.” However, the ALJ found this worsening was caused by the claimant’s experiences during the March 2000 litigation, when the claimant “had to watch surveillance video of her apparently inconsistent and possibly fabricated complaints.” As a result claimant felt “abused by the system.” However, the ALJ concluded the claimant’s increased depression is not compensable because it is “not a natural consequence of the work injury in November 1997.”
The ALJ also concluded the claimant “failed to prove that her continuing migraine headache and dizziness problems were due to the work injury.” In so finding, the ALJ applied the doctrine of collateral estoppel and determined his order of March 28, 2000, was conclusive concerning the cause of the claimant’s continuing headaches and dizziness.
I.
On review, the claimant contends the ALJ erred in denying the petition to reopen because the order compels the conclusion the claimant sustained a compensable worsening of condition consisting of visual problems and depression. Specifically, the claimant notes the ALJ found the claimant’s depression worsened as a result of “litigation stress.” The claimant argues “litigation stress” represents a compensable consequence of an industrial injury under the quasi-course of employment doctrine. The claimant also argues the evidence does not support the ALJ’s factual finding that deterioration of the claimant’s emotional condition was solely the result of the “litigation stress.” We disagree with these arguments.
The determination of whether a claim is to be reopened based on a worsened condition is discretionary with the ALJ, and we may not interfere with that determination absent fraud or a clear abuse of discretion. Richards v. Industrial Claim Appeals Office, 996 P.2d 756
(Colo.App. 2000). An abuse is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867
(Colo.App. 2000).
A change in condition refers to “a change in the condition of the original compensable injury or to a change in claimant’s physical or mental condition which can be causally connected to the original compensable injury.” Chavez v. Industrial Commission, 714 P.2d 1328, 1330 (Colo.App. 1985). The claimant bears the burden of proof to demonstrate a worsened condition and that the worsening was caused by the industrial injury. Richards v. Industrial Claim Appeals Office, supra.
Generally, proof of causation is an issue of evidentiary fact for determination by the ALJ. Consequently, we must uphold the ALJ’s pertinent evidentiary findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. However, in some instances, the issue of causation may become one of law if the evidentiary facts are undisputed and reasonable minds can draw but one inference. See Shrieber v. Brown Root, Inc., 888 P.2d 274
(Colo.App. 1993).
The ALJ found as a matter of evidentiary fact that the claimant failed to prove any worsening of condition except for increased depression caused by her reaction to the litigation and entry of the ALJ’s order of March 28, 2000. The claimant’s argument notwithstanding, these evidentiary findings are supported by substantial evidence in the record. Although the ALJ recognized that Dr. Esses reported an increase in visual difficulties, the ALJ implicitly rejected that evidence by finding the claimant failed to prove a worsened condition. Moreover, the ALJ was influenced by medical evidence indicating the claimant had a history of exaggerating, if not falsifying, her symptoms. Under these circumstances, it was for the ALJ to assess the relative weight and credibility of the lay and medical evidence and conclude the claimant failed to prove any worsening of her visual problems. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (weight and credibility of expert medical opinion is for the ALJ); Carey v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993) (expert medical opinions need not be credited even if they are unrebutted).
Further, substantial evidence supports the ALJ’s evidentiary finding that the worsening of the claimant’s depression was solely caused by her reaction to the litigation and the ALJ’s March 28 order. On March 10, 2000, the claimant’s treating psychotherapist records that, “recent court issues and move to new home have increased stress level for client.” On April 2, 2000, the psychotherapist reports the claimant “feels abused and misunderstood by system,” is angry at the presentation of the videotapes, and “interprets [the] court decision as an attack on her integrity.” In a letter dated May 30, 2000, the psychotherapist states the claimant “experienced a great deal of stress over the recent court decision” and was “very upset” that she was “painted in such a bad light” by the ALJ’s order. Although other inferences might have been drawn from the evidence, the ALJ’s interpretation is entirely plausible and there is no basis for interfering with the ALJ’s evidentiary findings concerning the cause of the worsened depression.
The question remains whether the ALJ erred as a matter of law in holding the claimant’s “litigation stress” and resulting worsened condition do not constitute legally compensable consequences of the industrial injury. We conclude the ALJ did not err.
The claimant analogizes litigation stress to “quasi-course of employment injuries” sustained when the claimant is injured while seeking authorized medical treatment. For instance, in Excel Corp. v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993), the court upheld the compensability of injuries which the claimant sustained when he slipped and fell while leaving an authorized physical therapy session. The court concluded the claimant’s injuries were compensable, even though they occurred outside the time and place limitations of the employment and would not be considered employment-related activities for usual purposes, because an employer is required to provide medical treatment for compensable injuries and the claimant is required to submit to it. Under such circumstances, trips to receive authorized treatment constitute an implied condition or expectation of the employment contract. See also Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., 964 P.2d 591 (Colo.App. 1998).
However, in our view, psychological problems resulting from “litigation stress” and entry of an adverse order are not sufficiently similar to “quasi-course” injuries to justify a finding of compensability. The obvious purpose of the “quasi-course” doctrine is to provide a theory which justifies the legal conclusion that such injuries arise out of employment. The “arising out of” element of compensability serves to establish a causal connection “between the employment and injury such that the injury has its origins in the employee’s work-related functions and is sufficiently related to those functions to be considered part of the employment contract.” (Emphasis added). Madden v. Mountain West Fabricators, 977 P.2d 861, 863 (Colo. 1999). Hence, in the quasi-course cases our courts have found a quasi-contractual obligation of the employer to provide treatment for the compensable injury, and a corresponding obligation of the claimant to cooperate in order to receive additional benefits. If, however, the element of contractual obligation is missing, the resulting injuries have not been found compensable. See Schrieber v. Industrial Claim Appeals Office, supra, (where claimant sustained injuries while seeking unauthorized
medical treatment there was no implied condition or expectation of the employment contract and the injuries were not compensable).
The statute creates an adversarial litigation process, and as a matter of due process both claimants and respondents are entitled to present evidence in support of their positions and confront adverse evidence. See Section 8-43-102, C.R.S. 2001; § 8-43-207(1), C.R.S.(2001); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076
(Colo.App. 1990). Further, the ALJ is obligated by statute to enter an order resolving any dispute which the parties present through the hearing process. Section 8-43-215(1), C.R.S. 2001. Consequently, when the claimant is presenting evidence and making argument in support of a claim for benefits, she is not performing any activity which may fairly be characterized as performing a service or activity inherent in the employment contract. Rather, she is exercising her legal right to make a claim for benefits. Similarly, when respondents present evidence adverse to the claimant they are not engaged in an activity secondary to the employment contract, but are exercising their independent statutory right to defend the claim.
The defense may include the presentation of evidence the claimant engaged in conduct totally divorced from the employment contract, such as malingering. Finally, the ALJ’s issuance of an order resolving the parties’ dispute occurs entirely outside of the employment contract, except for the bare fact that such a contract must exist in order for any benefits to be awarded.
The claimant’s theory also presents both factual and legal difficulties. On a factual level, the claimant is arguing that her idiosyncratic psychological reaction to the respondents’ successful conduct of the March 2000 litigation should itself provide the groundwork for additional benefits. If the claimant is correct, respondents in future cases would be required to calculate, to the extent they are able, whether the benefits of successful litigation are likely to outweigh the potential costs if the claimant experiences a psychological reaction to an adverse ruling from the ALJ. If this were the law, respondents in some cases might forego the presentation of valid defenses and drive up employers’ costs of procuring workers’ compensation. At a legal level, this result would be contrary to the statutory purpose of assuring the quick and efficient delivery of disability and medical benefits at a reasonable cost to employers. Section 8-40-102(1), C.R.S. 2001.
We also note that the adjustment practices of workers’ compensation insurers may give rise to tort liability. Therefore, our courts have held the exclusive remedy provisions of the Workers’ Compensation Act do not prohibit bad faith claims. Vaughan v. McMinn, 945 P.2d 404 (Colo. 1997) Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985). Bad faith adjustment liability may extend to claims for intentional infliction of emotional distress and outrageous conduct. McKelvy v. Liberty Mutual Insurance Co., 983 P.2d 42 (Colo.App. 1998). It would seem anomalous to conclude that an insurer’s “bad faith” conduct which results in emotional injury subjects the insurer to liability in the civil courts, but, conversely, idiosyncratic psychological reactions to legal defense conduct subjects the insurer to liability under the Workers’ Compensation Act.
Although not discussed in the briefs, we are aware that other jurisdictions have considered whether or not “compensation neurosis” is compensable. Professor Larson has defined compensation neurosis as taking “the form of an unconscious desire to obtain or prolong compensation, or perhaps of sheer anxiety over the outcome of compensation litigation — in either case producing a genuine neurosis disabling the claimant.” Further, Larson states that of “the cases that have reached the reports, a majority accept the compensability of genuine compensation neurosis,” although there is a substantial “contra line of cases.” 3 Larson’s Workers’ Compensation Law, § 56.05, § 56.05 [1]. Indeed, Larson endorses the “majority” rule “since, assuming that the anxiety over compensation and the accompanying neurosis are genuine, the line of causation from the original injury to the present disability is unbroken.” Id. § 56.05 [2].
For reasons stated above, we are not persuaded by the “majority rule,” nor do we find it consistent with the prevailing theory of compensability described in the Colorado cases. In Colorado the “chain of causation analysis”, relied upon by Larson, is reserved for cases where the industrial injury leaves the body in a weakened condition and the weakened condition plays a causative role in the subsequent injury. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). However, in the quasi-course cases the immediate “cause” of the claimant’s subsequent injury is an intervening accident sustained while obtaining medical treatment. In this line of cases the rationale for compensability is the implied contractual obligation of the employer to provide treatment and the claimant to cooperate with it, not the indirect causal relationship to the underlying workers’ compensation injury Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Co., supra.
Here, the ALJ did not find the claimant’s worsened depression was the result of a “weakened condition” stemming from the compensable injury. Rather, the ALJ found the worsened condition was caused by the claimant’s reaction to the insurer’s conduct of its defense of the claim, and the ALJ’s order denying the benefits sought by the claimant. Thus, this case is more analogous to the quasi-course cases than it is to the chain of causation cases. In these circumstances, we are persuaded by those authorities which treat “litigation stress” as an intervening event, not a compensable consequence of the industrial injury. Eg. Motorola, Inc. v. Industrial Commission, 125 Ariz. 211, 608 P.2d 788
(Ariz.App. 1980). It follows the ALJ did not abuse his discretion in denying the petition to reopen based on the claimant’s “worsened depression.”
The parties have not argued whether this claim for “litigation stress” is subject to the restrictions of § 8-41-301(2)(a) through (2)(d), C.R.S. 2001, and if so, whether the current or prior version of the statute would apply to the instant facts. Therefore, we have not considered these questions.
II.
The claimant also argues the ALJ erroneously applied the doctrine of collateral estoppel in determining that the claimant’s worsened condition, if any, was not caused by the 1997 injury. However, since we have held the evidence and law support the ALJ’s finding the claimant has not proven any compensable worsening of condition, we need not consider whether the ALJ correctly held that collateral estoppel precluded relitigation of the causation issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 26, 2000, is affirmed.
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David Cain
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Robert M. Socolofsky
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 February 13, 2002 to the following parties:
Elzbieta Jarosinski, 13871 N. Downing St., Brighton, CO 80601
Unique Casual Restaurants/Fuddruckers, James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202
Insurance Company of the State of Pennsylvania, Tina Gustafson, AIG Claim Services, Inc., P. O. Box 32130, Phoenix, AZ 85064
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
James B. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy