W.C. No. 4-414-388.Industrial Claim Appeals Office.
March 21, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant failed to prove a compensable causal connection between his worsened condition and the industrial injury and, therefore, denied the petition to reopen. We affirm.
The claimant suffered compensable injuries to his back and ribs during a fall at work in September 1998. The claimant testified that during the injury he also hit his head and was rendered unconscious.
The ALJ rejected the claimant’s testimony concerning the nature and severity of the industrial injuries. Instead, the ALJ credited testimony from the respondents’ witnesses that, the claimant slipped and fell down a dirt slope which aggravated his pre-existing degenerative disc disease to the lumbar spine. Crediting the testimony of the employers’ witness Mike Cox (Cox) the ALJ also found the claimant did not initially report any major injury and declined medical treatment. (See Tr. April 22, 2003, pp. 44-45, 48).
The treating physician placed the claimant at maximum medical improvement (MMI) in April 1999 and assigned zero permanent impairment. That same month, the claimant was laid off as a result of a work-force reduction.
A Division-sponsored independent medical examination (DIME) physician opined the industrial injury caused 12 percent whole person impairment of the lumbar spine. The DIME physician did not include any rating for a psychological injury. The respondents applied for a hearing to overcome the DIME physician’s medical impairment rating, which was scheduled for June 2000.
In the interim the claimant sought additional medical treatment based on a worsening of his condition. In particular, the claimant reported suicidal thoughts due to his physical limitations, financial problems and litigation of the workers’ compensation claim. The issue of the claimant’s psychological condition was not raised at the June 2000 hearing, and the claimant did not seek to overcome the DIME physician’s failure to find a compensable psychological injury even though the claimant testified that he experienced the onset of depression from the industrial injury in March 1999. Thereafter, an ALJ determined the respondents failed to overcome the DIME physician’s rating. Neither party appealed the order and the claim was closed.
In December 2001, the claimant petitioned to reopen the claim and alleged that the residual effects of the injury caused him to develop depression and increased pain that extended from the back to the neck, shoulders, legs and feet.
Following an independent medical examination, Dr. Miller opined the claimant was feigning amnesia and was projecting a factitious head injury. Dr. Miller also opined that claimant’s suicide gestures suggested a pattern of manipulation intricately tied to litigation issues to obtain social security and workers’ compensation benefits. Dr. Miller diagnosed the claimant as suffering from Adjustment Disorder with Depressed Mood, unrelated to the industrial injury and caused by situational factors such as “litigation stress, financial stress, and his lay off.” (Finding of Fact 51; Conclusions of Law p. 16; Tr. November 19, 2002, pp. 646, 657, 678, 681-682). In particular, Dr. Miller testified that the claimant reported feeling “betrayed” by the workers’ compensation system and his attorney when he received only $17,000 for permanent disability benefits. (Tr. November 19, 2002, pp. 616, 644).
Crediting the opinions of Dr. Miller, and rejecting the expert medical opinions which were predicated on the claimant’s report of a head injury, the ALJ determined the claimant’s psychological condition was related to situational factors, such as litigation stress, financial stress and the termination of employment in 1999. More specifically, the ALJ found the claimant became depressed “when he realized there were no solutions to his financial problems and to what he perceived as his disability.” (Finding of Fact 21). The ALJ also determined the claimant failed to prove a worsening of his physical condition from the industrial injury. Consequently, the ALJ denied the petition to reopen and the requests for additional medical and temporary disability benefits.
On review the claimant contends the ALJ erroneously failed to find the claimant proved his worsened psychological condition was caused by the industrial injury. We disagree.
An ALJ may reopen a claim and award additional temporary disability benefits based upon a natural worsening of the industrial injury. 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. As argued by the claimant, the industrial injury does not have to be the sole cause of the worsened condition. See Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995), rev’d on other grounds Askew v. Industrial Claim Appeals Office, 927 P.2d 1333 (Colo. 1996); Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996). However, i Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002), the court held that problems resulting from a claimant’s negative psychological reaction to the litigation process are not compensable. The court reasoned that if “litigation stress” injuries were compensable, respondents 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 injured worker experiences a psychological reaction to an adverse ruling. Id. at 1085.
Relying on Jarosinski we concluded in Briles v. Montrose Memorial Hospital, W.C. No. 4-522-095 (April 30, 2004), that the claimant’s depression compensable where it was caused by a compensable shoulder injury and subsequent work-related issues stemming from the injury, which included the claimant’s doubt that she was capable of performing her job. However, in Chavarria v. Dayton Hudson Corporation, W.C. No. 4-492-078
(June 5, 2003), we upheld the denial of compensation where an ALJ found the claimant’s psychological condition consisted mainly of “anger at being abandoned by the employer, and not from fear of being unable to work.”
Here, Dr. Miller opined that the claimant’s depression was caused, at least in part, by the 1999 lay-off and the consequent financial stress. (Tr. November 19, 2002, p. 646). Because the ALJ credited Dr. Miller’s testimony, the claimant argues the ALJ was compelled to find a compensable connection between the depression and the industrial injury. We disagree.
The determination of the particular cause of the claimant’s psychological injury was a question of fact for resolution by the ALJ Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002). We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record. MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002).
The claimant was released to regular employment prior to the lay-off (Tr. April 22, 2003, p. 52), and the record supports the ALJ’s finding that the lay-off was the result of a work slowdown. Under these circumstances, the ALJ could reasonably find that neither the lay-off nor the claimant’s depressive reaction to the lay-off was a natural consequence of the industrial injury.
The claimant also points out that Dr. Miller suggested a causal connection between the claimant’s back pain from the industrial injury and the depression. (Tr. November 19, 2002, p. 651). However, Dr. Miller stated that either condition could necessarily aggravate the other and suggested that the depression could have caused the chronic pain. (Tr. November 19, 2002, p. 683).
Crediting the opinions of Dr. Aschberger the ALJ found the claimant failed to prove any worsening of his pain syndrome from the industrial injury. The ALJ then credited Dr. Miller’s opinion that the depression caused the pain and not the reverse. (Finding of Fact 45). It follows that because the ALJ was not persuaded the depression was a natural consequence of the industrial injury, the ALJ reasonably inferred that Dr. Miller’s opinion concerning a causal relationship between the depression and the claimant’s pain was insufficient to establish compensable depression.
Furthermore, regardless of whether the DIME physician was Level II accredited to evaluate mental impairment, the ALJ could rely on Dr. Miller’s opinion that the DIME physician possessed the requisite skill and expertise to recognize a depressed patient, if that had been the claimant’s presentation at the time of the DIME.
The claimant also argues the ALJ failed to appreciate that the claimant’s inability to speak fluent English precluded the treating physicians from recognizing his compensable head injury. However, the ALJ’s finding to the contrary is supported by substantial evidence in the testimony of Cox and Daryl Wilson. (See Wilson depo. p. 36; Tr. April 22, 2003 pp. 45, 55).
The claimant’s remaining arguments have been considered and do not alter our conclusions. Moreover, the ALJ’s order denying the petition to reopen is dispositive of the claimant’s request for additional temporary disability benefits. Therefore, we need not address the claimant’s contention that his loss of earnings after the 1999 lay-off was caused by the industrial injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 5, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Eleazar Palomo, Aurora, CO, Lawrence Construction, Littleton, CO, Valerie Burke, Zurich Insurance Co., Denver, CO, Barbara J. Furutani, Esq., Denver, CO, (For Claimant).
Marsha A. Kitch, Esq., Evergreen, CO, (For Respondents).