W.C. No. 4-145-330Industrial Claim Appeals Office.
January 23, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ) dated August 21, 1995, which denied and dismissed his claim for workers’ compensation. We affirm.
This matter was previously before us. On May 18, 1995, we set aside the ALJ’s prior orders dated May 27 and June 10, 1994, which determined that the claimant sustained compensable stress from an increase in the volume of his workload. The ALJ determined that the claim was based upon an “occupational disease.” However, the ALJ did not determine the date of the claimant’s “onset of disability.” Therefore, we concluded that the ALJ’s findings of fact were insufficient to ascertain whether the claim is governed by the law in effect before or after July 1, 1991, the effective date of Senate Bill 91-218 (SB 218).
In so doing, we drew the ALJ’s attention to the distinction between a claim of compensable stress under former § 8-41-301(2), C.R.S. (Cum. Supp. 1990), and a claim of “mental impairment” under SB 218. Specifically, the statutory language currently codified at § 8-41-301(2), C.R.S. (1995 Cum. Supp.), provides that “mental impairment” means a disability arising from an accidental injury involving no physical injury, and which “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.”
We also concluded that the ALJ made no finding as to whether the claimant sustained his burden to prove that the stress arose “primarily from the claimant’s then occupational and place of employment,” and was “in and of itself, either sufficient to render the employee temporarily or permanently disabled from pursing the occupation from which the claim arose or to require medical or psychological treatment,” as required by both the pre and post SB 218 versions of § 8-41-301(2). Therefore, we remanded the matter to the ALJ to make additional findings of fact concerning which version of the law governed the claim and whether the claimant established the proof required by the applicable law.
On remand, the ALJ issued the August 21 order, in which he found that the claim is governed by SB 218. The ALJ further determined that the claimant failed to sustain his burden to prove the requirements of a claim of “mental impairment” under § 8-41-301(2), C.R.S. (1995 Cum. Supp.). Therefore, the ALJ denied and dismissed the claim.
On review, the claimant contends, inter alia, that the ALJ’s August 21 findings of fact concerning his medical and employment history are essentially the same as the findings in the ALJ’s prior orders. Furthermore, the claimant does not dispute these factual determinations. Rather, the claimant contends that the ALJ could not reach conclusions “wholly contrary” to his prior orders based upon the same findings of fact. Similarly, the claimant contends that the same evidentiary record cannot support the ALJ’s prior determination that the claimant suffered a compensable injury, and the ALJ’s contrary determination in the August 21 order. We reject these arguments.
We agree with the claimant that the ALJ’s August 21 order was based upon the same evidentiary record as the ALJ’s prior orders, and that the orders contains essentially the same factual determinations concerning the claimant’s medical and employment history. However, the claimant’s argument presumes that the ALJ’s prior factual determinations concerning the claimant’s medical and employment history supported a claim of compensable stress. To the contrary, we concluded that the ALJ’s factual determinations were insufficient and that additional findings were necessary. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (court deferred to Industrial Commission’s interpretation of its own order of remand). Had we concluded as a matter of law that the ALJ’s findings compelled the conclusion that the claimant sustained compensable stress under both the pre and post SB 218 versions of § 8-41-301(2), it would not have been necessary to remand the matter. See Schreiber [Schrieber] v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (where undisputed facts lead to only one conclusion, the issue is a question of law).
In any event, our Order of Remand set aside the ALJ’s prior orders and directed the ALJ to make additional findings of fact. Therefore, the ALJ was not bound by his prior determinations concerning whether the claimant sustained his burden to prove compensable stress. Consequently, the claimant’s arguments concerning the inconsistency between the ALJ’s August 21 order and his prior orders do not establish grounds which afford us a basis on which to set aside the August 21 order.
We also reject the claimant’s contention that the ALJ’s August 21 order is insufficient because the ALJ failed to explain the reasons he changed his mind on the issue of compensability. It is clear that the ALJ’s August 21 order is based upon the directions set forth in our order of remand, and the ALJ’s reconsideration of the evidence under the specific requirements of § 8-41-301(2), C.R.S. (1995 Cum. Supp.). The claimant’s remaining arguments to the contrary are without merit.
Furthermore, we are unpersuaded by the claimant’s contention that his testimony and the report of Dr. Williams establish the compensability of this claim. The ALJ was not required to credit either the claimant’s testimony or that part of Dr. William’s report which the claimant contends supports a claim of “mental impairment.” See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970); Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Therefore, the existence of evidence in support of the claim does not establish grounds for interfering with the ALJ’s August 21 order.
The determination of whether the claimant has sustained his burden to prove a compensable claim of “mental impairment” is a question of fact for resolution by the ALJ. Eisnach v. Industrial Commission, 633 P.2d 502
(Colo.App. 1981). Consequently, we must uphold the ALJ’s determination that the claimant did not sustain his burden of proof if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). Further, the application of the substantial evidence test requires that we defer to the ALJ’s credibility determinations, his assessment of the sufficiency and probative value of the evidence, and the plausible inferences the ALJ drew from the record. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, the ALJ found that the claimant perceived himself as being overworked, but in fact, was not overworked. Crediting Dr. Sagall’s opinion, the ALJ also found that the perception of being overworked is common to all fields of employment. Further, the ALJ determined that the primary cause of the claimant’s stress and depression was not his occupation and employment as required by § 8-41-301(2)(b), but the claimant’s heart condition which required surgery in 1992. Accordingly, the ALJ determined that the claimant’s stress did not arise out of a “psychologically traumatic event that is generally outside of a worker’s usual experience” and “the stress was not of the type to evoke significant symptoms of distress in a worker in similar circumstances.”
The ALJ’s findings concerning the cause of the claimant’s stress and depression are supported by substantial evidence and plausible inferences drawn from the medical records of Dr. Cole, Dr. Price, and Dr. Sagall, which the ALJ expressly relied upon. Moreover, the opinions of Dr. Sagall, together with the testimony of the employer’s witnesses, Tom Dillinger and Tom Romano, amply support the ALJ’s determination that the claimant’s stress did not consist of a work-related event that is generally outside of a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. Therefore, we must uphold the ALJ’s finding that the claimant failed to sustain his burden to prove that his stress arose “primarily from” his employment as required by §8-41-301(2)(b).
Because the claimant must prove every element of § 8-41-301(2) to sustain a claim of mental impairment, the ALJ’s determination that the claimant failed to prove the requirements of subsection 8-41-301(2)(b) is fatal to the claim. Consequently, it is immaterial whether the ALJ erred in determining that the claimant failed to establish the remaining requirements for a claim of mental impairment. Accordingly, we do not consider whether the ALJ erred in finding that the claim is based in whole or in part upon facts common to all fields of employment, or that the claimant failed to sustain her burden to prove that the claim is supported by the opinion of a physician or licensed psychologist.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 21, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed January 23, 1996 to the following parties:
Thomas Stephens, 4825 Astrozon, #189-B, Colorado Springs, CO 80916
Carlin Dodge, Attn: Vince Creaney, 3204 E. Platte Dr., Colorado Springs, CO 80909
American Hardware Insurance Group, Attn: Michael Holdvogt, 5995 Opus Parkway, Minnetonka, MN 55343
Crawford Company, Attn: Alice Troutman, 7000 S. Yosemite, #150, Englewood, CO 80112-2016
Pamela Adams Donnelly, Esq., 90 S. Cascade, Ste. 300, P.O. Box 2940, Colorado Springs, CO 80903 (For the Claimant)
Karl A. Schulz, Esq., 102 S. Tejon St., Ste. 1100, Colorado Springs, CO 80903 (For the Respondents)
BY: _______________________