W.C. No. 4-202-359Industrial Claim Appeals Office.
July 2, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Henk (ALJ) which denied the claim for benefits based upon “mental impairment.” We affirm.
The ALJ found that the claimant was a “mobile perimeter patrol” officer who guarded a prison. The claimant’s job required him to drive around the prison perimeter and “challenge” unauthorized persons or vehicles entering the prison grounds.
Soon after commencing this job in August 1993, the claimant became “bored with the position.” He requested to move inside the prison facility, but the ALJ found that he “never expressed any emotional or psychological problem” as a result of his boredom.
The ALJ also found that on the night of January 26, 1994, a prison official, Lieutenant Ron McCall, drove a vehicle onto the prison grounds without forewarning for the purpose of testing the performance of the claimant and a fellow officer. The claimant stopped McCall’s vehicle, and testified that the encounter was very stressful and heated. However, McCall testified that there was nothing unusual or hostile about the encounter except that he told the claimant not to drive on “newly-seeded land between” two perimeter roads.
The claimant missed approximately one month of work following the January 26 incident. He alleged that he suffered compensable mental impairment as a result of the conditions of his employment, and the encounter on January 26.
However, the ALJ denied the claim for benefits. First, the ALJ found that the claim for mental impairment was not supported by the testimony of a licensed physician or psychologist as required by § 8-41-301(2)(a), C.R.S. (1995 Cum. Supp.). The ALJ stated that the claimant’s treating physician, Dr. Reichert, was qualified to give an opinion, but never reported that the claimant sustained a “psychologically traumatic event outside of a worker’s usual experience” that would “evoke significant symptoms of distress in a worker in similar circumstances.” In support of this finding, the ALJ observed that Dr. Reichert blamed the claimant’s condition on the “monotony” of the job, not a psychologically traumatic event. Moreover, the ALJ found that the “challenge” incident would not “evoke symptoms of distress in a worker in similar circumstances.” In this regard, the ALJ noted that the claimant’s fellow officer did not suffer any adverse effects from the encounter.
Finally, the ALJ found that the January 26 incident was the result of a “work evaluation and/or a disciplinary action taken in good faith by respondents.” Specifically, the ALJ determined that the “challenge” incident was part of the claimant’s “job requirements” and was designed to test the performance of guards and make improvements where necessary.
On review, the claimant challenges the sufficiency of the evidence to support the ALJ’s denial of benefits. We perceive no error.
Initially, we note that the ALJ’s findings of fact must be upheld is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Consequently, we are not free to interfere with the ALJ’s resolution of conflicts in the evidence, her credibility determinations or the plausible inferences which she drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
In Stephens v. Carlin Dodge, W.C. No. 4-145-330, May 18, 1995, we held that § 8-41-301(2)(a) requires a claimant to present the opinion of a “licensed physician or psychologist” to support a claim that he has experienced a “psychologically traumatic event that is generally outside of a workers’ usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.” The purpose of the requirement for testimony by a licensed physician or psychologist is to reduce costs by preventing frivolous and unnecessary claims for mental impairment. Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992); see also, Oberle v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0934, May 2, 1996); Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995).
The claimant’s argument notwithstanding, there is substantial evidence to support the ALJ’s finding that the claimant failed to present testimony by a licensed physician or psychologist in “support” of his claim. As the ALJ found, Dr. Reichert’s February 25, 1994 report attributes the claimant’s psychiatric difficulties to the “routine” of the mobile perimeter patrol job, not the alleged “psychologically traumatic event” of January 26. The only medical evidence referring to the January 26 incident was from social worker Gary Nichols who does not possess the statutory qualifications to give an opinion.
Moreover, we have previously held that the question of whether an alleged psychologically traumatic event would “evoke symptoms of distress in a worker in similar circumstances” is itself a question of fact for resolution by the ALJ. See Replogle v. City of Thornton, W.C. No. 4-122-999, 4-120-774, February 3, 1993. The fact that the January 26 “challenge” incident did not evoke symptoms of distress in the claimant’s fellow employee, and that such unannounced challenges were part of the regular job duties, supports the ALJ’s finding that the January 26 incident would not “evoke significant symptoms of distress in a worker in similar circumstances.” It is true that it was the claimant, not the co-worker, who actually stopped McCall. However, this went to the weight of the evidence and certainly was not determinative of the issue.
The claimant also asserts that the evidence does not support the ALJ’s finding that McCall was “evaluating” the claimant, or engaging in a “disciplinary action” when he entered the prison perimeter. Rather, the claimant asserts that McCall was merely “supervising” the claimant.
Even if the claimant’s description of McCall’s activities were technically correct, we would not find it significant. Section 8-41-301(2)(a) states that claims for mental impairment may not be based on disciplinary actions, work evaluations “or similar actions taken in good faith by the employer.” (Emphasis added). Therefore, the precise classification of McCall’s activity is not critical to the issue.
Here, the evidence establishes that the employer regularly penetrated the prison perimeter for the purpose of determining whether or not prison guards were alert and prepared to stop an unauthorized intruder. We agree with the ALJ that this constitutes a “work evaluation” or “similar action” designed to insure the competence of guards. Since the ALJ did not credit any evidence suggesting that McCall may have acted in “bad faith,” the record fully supports the determination that the claim for mental impairment is barred because it results from a job evaluation or similar action.
The claimant has made other arguments concerning the inferences to be drawn from the evidence. However, these arguments refer to portions of the mental impairment statute which the ALJ did not rely on in denying the claim. Since the ALJ’s findings and conclusion are supported by the evidence, we need not consider the claimant’s other arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 14, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 2, 1996 to the following parties:
Maclovio J. Martinez, 3717 Canterbury Lane, Pueblo, CO 81005
Colorado State Dept. Corrections #44, P.O. Box 1010, Canon City, CO 81215
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
James A. May, Esq., 1401 Court St., Pueblo, CO 81003 (For the Claimant)
Douglas J. Kotarek, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
By: __________________________