W.C. Nos. 4-333-385; 4-393-720; 4-393-723; 4-393-726 4-397-554; 4-397-555 4-399-689Industrial Claim Appeals Office.
December 4, 2000
FINAL ORDER
The claimant and respondent petitioned separately for review of an order of Administrative Law Judge Corchado (ALJ) dated March 14, 2000. The claimant contends the ALJ erroneously denied her claim for workers’ compensation based on exposure to diesel fumes. The respondent contests the ALJ’s awards of medical and temporary disability benefits for various physical and mental injuries. We affirm the order in part, set it aside in part, and remand.
The claimant filed these consolidated workers’ compensation claims which alleged injuries to both wrists, the low back, shoulder, elbows, and neck. The respondent admitted liability for injuries to the claimant’s low back, neck and shoulders. The claimant also alleged she suffered headaches from exposure to exhaust fumes and mental impairment from work-related stress and anxiety.
The ALJ found the claimant suffered compensable injuries to her wrists, neck, shoulders, elbows, and low back. The ALJ found that as result of the physical injuries the claimant suffered headaches. Further, the ALJ determined the claimant sustained compensable mental impairment due to work-related stress and anxiety over her limitations from the physical injuries. The ALJ ordered the respondent to provide medical benefits to cure and relieve the effects of the injuries. The ALJ also required the respondents to pay temporary total disability benefits commencing August 13, 1998, and continuing through the date of the order. However, the ALJ denied and dismissed the claim based on exposure to exhaust fumes.
I.
On review the respondent first contends the ALJ erroneously found the claimant sustained her burden to prove compensable mental impairment. We perceive no error.
Former § 8-41-301(2)(a), C.R.S. 1998 [amended 1999 Colo. Sess. Laws. Ch. 103 at 299 for injuries which occur on or after July 1, 1999], defines compensable “mental impairment” as:
“a 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.”
Subsection 8-41-301(2)(b) requires that the mental impairment which is the basis of the workers’ compensation claim must arise “primarily from the claimant’s then occupation and place of employment.” Subsection 8-41-301(2)(c) requires that the mental impairment claim “cannot be based in whole, or in part, upon facts and circumstances that are common to all fields of employment.”
The claimant worked as an inventory clerk. In 1990 Fred Dominguez (Director) was appointed the Director of the department. The claimant was then made part of the “administration” and given more responsibility which included tracking equipment purchases. The claimant and the Director worked together well until 1995 when the Director began drinking excessively, frequently missed time from work and made greater demands on the claimant. The Director’s health gradually worsened until he became gravely ill from liver failure. The Director was then absent from work about fifty percent of the time. As a result, the claimant was required to assume even more responsibility. When the Director was at work, the claimant had to help him to his desk, sometimes check to see if he was breathing, clean him up after he suffered a nose bleed, and watch him be transported to the hospital by “flight-to life.” The claimant occasionally had meet the Director in the hospital for work instructions. The ALJ found the Director’s severe illness and absenteeism created an unusual work experience which would have been stressful for any objectively reasonable person in the claimant’s position.
Simultaneously, the claimant was involved in an investigation of the Director’s theft of county property. The claimant was instructed to keep track of the Director’s expenditures that looked questionable. The ALJ found that these circumstances would have caused any “reasonably minded person” anguish and fear about reporting the Director’s actions. The claimant testified that when she submitted her findings, she was told not to expect any action because the county commissioners had taken over the investigation. Bob Zimmerman (Zimmerman), a county commissioner and childhood friend of the Director, testified that he eventually went to the Director’s home and told the Director to return the missing property to the county. A few days later a new inventory was conducted and all the missing equipment was present. However, the ALJ found Zimmerman did not inform the claimant of the outcome of the investigation and that the claimant was “ostracized to some degree” for reporting the Director’s misappropriation of funds. The Director retired in 1998 and the claimant left work August 13, 1998.
Based upon these findings, the ALJ determined the claimant suffered compensable mental impairment due to witnessing the “horrific deterioration” of the Director’s health, his substantial absence from the office which required extraordinary effort to obtain work directions, and his misuse of county property. The ALJ determined the investigation was not a usual work experience and that the investigation caused the claimant to suffer additional stress “especially in light of the Claimant’s work environment and the close relationship between [the Director] and County Commissioner Zimmerman.” Further, the ALJ found the claimant’s fear of being accused of theft or an accomplice to the Director’s theft was not common to all fields of employment.
The respondent contends there is insufficient evidence to support that ALJ’s implicit finding the mental impairment arose from a “traumatic event.” In support, the respondent relies on evidence the claimant’s job duties required her to verify purchase invoices and she was not alone in the investigation of the Director’s malfeasance. Further, the respondent contends that a supervisor’s illness and resulting absence from work, and questionable spending practices are conditions common to all fields of employment. Moreover, the respondent contends the record fails to support the ALJ’s finding that the claimant was ostracized after reporting the Director’s mismanagement.
The respondents’ arguments notwithstanding, we conclude that the ALJ’s findings of fact are supported by substantial evidence and plausible inferences drawn from the record. (Tr. May 26, 1999, pp. 39, 75 130, 151, 158, 188, 205, 218, 257; May 27, 1999, pp. 88, 93; December 1, 1999, p. 226; 272, 274; December 2, 1999, pp. 137, 173, 177, 19 ; December 2, 1999, pp. 119-121, 130, 133, 188, 192, 205). The ALJ’s findings are buttressed by the testimony of psychotherapist, Barbara Kreiner, who stated the claimant began treating with her for depression and anxiety due to stress from dealing with a very ill supervisor who was also being investigated for the misuse of public property. (Tr. May 27, 1999, p. 127). The ALJ’s findings are also supported by Dr. Ricci’s testimony. (Tr. December 2, 1999, pp. 8, 31, 53, 57). Dr. Ricci testified that the claimant’s anxiety about having to report the Director’s theft was compounded by evidence the county commissioners attempted to cover- up the theft and protect the Director. (Tr. December 2, 1999, p. 37). Dr. Ricci also opined the claimant’s psychological symptoms arose primarily from her employment and that the work-related stress was sufficient to render the claimant temporarily totally disabled. (Tr. December 2, 1999, pp. 77-78, 80).
The phrase “fact and circumstances. . .common to all fields of employment” has been interpreted to mean those certain employment conditions that are generally inherent in every work situation See Holme, Roberts, and Owen v. Industrial Claim Appeals Office, 800 P.2d 1332 (Colo.App. 1990). Whether a particular condition is “common” to all fields of employment depends on whether the condition in question is usual, ordinary, or customary. See White Star Linen Rental v. Industrial Claim Appeals Office, 787 P.2d 189
(Colo.App. 1989).
The question of whether a particular mental impairment “results from” or is “based upon” objectively common factors is one of fact for resolution by the ALJ. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). The ALJ’s determinations must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Under this standard we are required to view the evidence in the light most favorable to the prevailing party. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293
(1951).
The respondent’s arguments notwithstanding, the ALJ reasonably inferred that working for a supervisor who is first suffering from a drinking problem, then a severe illness at the same time additional work duties are imposed, which includes an investigation of the supervisor’s criminal conduct are not conditions inherent in every work situation. The ALJ’s finding is also supported by Dr. Ricci’s opinion that the employment stress which caused the claimant’s injury was not common to all fields of employment. See Broadmoor Hotel, Inc. v. Nilson (Colo.App. 94CA1817, October 26, 1995) (not selected for publication) (ALJ may rely on physician’s testimony that stress was uncommon to the usual workplace).
The respondent’s remaining arguments have been considered and are without merit. The respondent essentially requests that we reweigh the evidence on review. We have no such authority and, thus, decline the respondent’s invitation to do so.
Moreover, there is substantial evidence that the claimant is temporarily totally disabled as a result of the mental impairment. Therefore, the ALJ did not err in awarding temporary total disability benefits in the mental impairment claim.
II.
The respondent contests the ALJ’s finding that the claimant suffered a compensable bilateral wrist injury. The respondent contends the claimant never reported such an injury to the employer, never filed a workers’ compensation claim which alleged a bilateral wrist injury, and there is no medical evidence which documents a bilateral wrist claim. Further, the respondent argues the bilateral wrist claim is barred by the statute of limitations. We disagree.
An affirmative defense which must be explicitly plead. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394
(1977). Consequently, an affirmative defense, is deemed waived if not raised at a point in the proceedings which affords the opposing party an opportunity to present rebuttal evidence. See
C.R.C.P. 8(c); Terry v. Terry, 154 Colo. 41, 387 P.2d 902 (1963) Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995). Waiver may be established by conduct which evidences a parties intent to relinquish a know right. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Reese v. Cripple Creek Mountain Estates Country Club (Colo.App. No. 91CA0291, November 29, 1991) (not selected for publication) (statute of limitations defense waived where not endorsed at beginning of hearing).
The claimant filed a workers’ compensation claim dated October 19, 1998, which alleged an injury to her right wrist on October 21, 1996, resulting in a bone spur. The claimant subsequently applied for a hearing in the consolidated claims. The respondent filed a response to the application for hearing which listed the “statute of limitations” as an affirmative defense. However, the respondent did not expressly identify which claim was allegedly barred by the statute of limitations. Furthermore, the respondent did not file a hearing brief which clarified the statute of limitations defense.
At the commencement of the hearing, the claimant’s attorney stated the claimant sought benefits for an October 21, 1996 “bilateral upper extremity” injury due to working at a computer keyboard that was improperly positioned at her desk. The claimant’s attorney stated that the primary complaint was “ganglious,” but as a result of testing the claimant was also suspected to suffer from carpal tunnel syndrome (CTS) bilaterally. (Tr. May 26, 1999, p. 26).
The respondent’s attorney stated the respondent disputed the diagnosis of CTS. However, the respondent did not assert that the bilateral upper extremity claim was barred by the statute of limitations and did not present evidence in support of the defense. Under these circumstances, the respondent waived the argument that the bilateral upper extremity claim is barred by the statute of limitations. (Tr. May 26, 1999, pp. 33-34). See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
Further, the ALJ’s finding of a compensable claim for bilateral wrist pain is supported by the claimant’s testimony and Dr. McMillian’s clinic note dated October 29, 1996. (See Dr. McMillian clinic note dated October 29, 1996).
III.
Similarly, the respondent contends the ALJ erroneously found a compensable right wrist bone spur. The respondent contends the claimant has been diagnosed with a “ganglion cyst,” but no “bone spur.” Furthermore, the respondent contends there is no evidence the cyst was disabling.
The claimant alleged a 1996 injury resulting in a right wrist “bone spur.” However, as argued by the respondent Dr. McMillian diagnosed the right wrist problem as a ganglion cyst. The claimant’s testimony supports the ALJ’s determination that the right wrist pain was due to prolonged use of the computer at work. (See Summary Order January 3, 1999). The claimant is not required to know the exact medical diagnosis of the injury. Furthermore, the respondent does not dispute the claimant’s alleged right wrist injury refers to the condition which was ultimately diagnosed as a ganglion cyst. (Tr. May 26, 1999, p. 34). Consequently, the ALJ’s erroneous characterization of the injury as a “bone spur” instead of a “ganglion cyst” is harmless and will be disregarded. Section 8-43-310 C.R.S. 2000; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
IV.
The respondent also contests the award of continuing temporary disability benefits for the neck, shoulder, back and wrist injuries. The respondent contends there is no evidence the claimant is physically disabled by these injuries. Rather, the respondent contends that on May 10, 1999, Dr. Lambden released the claimant to return to regular employment.
To receive temporary disability benefits the claimant must prove that “to some degree” her temporary wage loss is due to the industrial injury. PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995). The term “disability” as used in the context of workers’ compensation cases connotes two elements. The first element is “medical incapacity” evidenced by loss or restriction of bodily function. The second element is loss of wage-earning capacity as demonstrated by a claimant’s inability “to resume his or her prior work.” Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). Once the claimant establishes her entitlement to temporary disability benefits, such benefits continue until terminated in accordance with the provisions of § 8-42-105(3)(a)-(d), C.R.S. 2000. Under subsection 8-42-105(3)(c), temporary disability benefits terminate when the “attending” physician has released the claimant to return to regular employment. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). The term “attending physician refers to an “authorized treating physician.” Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).
The claimant testified that she is unable to sit for any extended period due to low back pain, and that ongoing pain and problems in her neck, shoulders, and low back preclude her from performing her regular job duties. (Tr. December 1, 1999, p. 213, 218). Thus, the claimant’s testimony is sufficient to support the ALJ’s finding that the back, neck and shoulder injuries contribute to the claimant’s temporary disability after May 10, 1999. caused a “disability.” Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997).
On November 10, 1998, Dr. McMillian reported the claimant “continues off work,” for her injuries. The ALJ found Dr. McMillian is an authorized treating physician for the claimant’s physical injuries and the respondent presented no evidence Dr. McMillian subsequently released the claimant to return to work. Furthermore, the evidence indicates Dr. Lambden performed an independent medical examination. Therefore, the ALJ did not err in failing to find Dr. Lambden is an authorized treating physician, and was not required to deny the claim for temporary disability benefits based on Dr. Lambden’s release to regular employment.
V.
The respondent also contests the ALJ’s finding that the claimant suffered headaches and a compensable psychological injury as a result of the admitted neck, shoulder and back injuries. The claimant testified that after she injured her hands she began to worry about losing her job and getting a new job because she would not be able to pass a typing test. She stated that she consequently became depressed. (Tr. December 1, 1999, p. 215). The claimant’s testimony in and of itself is sufficient to support the ALJ’s determinations and therefore, we are bound by the ALJ’s findings on review. See Savio House v. Dennis, 665 P.2d 141
(Colo.App. 1983).
VI.
The claimant contends inter alia, the ALJ erred insofar as he required her to prove that her exposure to exhaust fumes caused a “permanent” injury. Because the ALJ’s findings of fact suggest he may have applied the wrong legal standard, we set aside the contested portion of the order and remand for entry of a new order.
In support of his determination that the claimant failed to prove a compensable physical injury from the work-related exposure to exhaust fumes, the ALJ credited Dr. Repsher’s testimony that the level of diesel fumes in the claimant’s office was insufficient to cause “permanent injury” to the claimant. The ALJ relied on Dr. Repsher’s testimony in support of his finding that a higher level of fumes is required to “permanently injure a person or cause physical injury.” (Finding of Fact 38). Therefore, the ALJ ultimately determined the claimant’s symptoms were “not permanent enough to provide a basis for workers’ compensation benefits.” (Discussion and Conclusions of Law-the Exposure Claims).
As argued by the claimant, proof of a “permanent injury” is not required to establish compensability. See Conry v. City of Aurora, W.C. No. 4-195-130, (April 24, 1996) (industrial ammonia exposure resulted in compensable temporary aggravation of pre-existing asthma). Rather, the claimant has a compensable injury if the employment-related activities aggravate, accelerate, or combine with the pre-existing condition to cause a need for medical treatment or produce the disability for which benefits are sought. Section 8-41-301(1)(c), C.R.S. 2000; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). In that event the claimant’s condition is compensable as long as the disability or need for treatment is a direct consequence of the industrial exposure.
We are unable to ascertain whether the ALJ recognized and applied the correct legal standard in denying the claim for benefits due to exhaust fume exposure. Furthermore, the record contains some evidence the claimant obtained medical treatment for respiratory complaints due to exhaust inhalation. (See clinic notes from Dr. McLaughlin August 11, 1995; Dr. Scholand August 7, 1996). Therefore, the record contains some evidence which, if credited, might support a finding the claimant suffered a compensable injury from exposure to diesel fumes. Consequently, the matter is remanded for the entry of a new order which reflects his application the proper legal standard.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 14, 2000, is set aside insofar as the ALJ denied the claim based on exposure to exhaust fumes, and the matter is remanded to the ALJ for entry of a new order on the claim consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise 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. 2000. 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 December 4, 2000 to the following parties:
Sally Salazar, 135 Tinkham, Alamosa, CO 81101
Alamosa County Road and Bridge, P. O. Box 178, Alamosa, CO 81101-0178
County Workers’ Compensation Pool, Norma Sanchez, CTSI, 1700 Broadway, #1512, Denver, CO 80290
Occupational Healthcare Management, P. O. Box 173682, Denver, CO 80217-3682
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
David J. Dworkin, Esq. and Margaret Bauder Garcia, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
Stephen Jones, Esq., 600 17th St., Suite 1600N, Denver, CO 80202
BY A. Pendroy