W.C. No. 4-815-379.Industrial Claim Appeals Office.
October 15, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated July 15, 2010 that denied her claim for benefits. We affirm.
This matter proceeded to hearing on the claimant’s request for medical benefits based on an alleged mental impairment. However, the ALJ was not persuaded that the claimant established the necessary elements to prove a compensable mental impairment. Several of the ALJ’s findings are summarized as follows. The employer gave the claimant increased responsibilities as a manager of a retail store. She subsequently encountered performance issues and disciplinary actions. On December 7, 2009 the claimant went to a medical center for evaluation after becoming dizzy and experiencing chest pain. The claimant remarked that she experienced an extreme amount of stress at work and suffered symptoms for months. The claimant also mentioned having increased stress due to a filing a lawsuit against the employer claiming harassment and discrimination. The employer ultimately discharged the claimant in February 2010 for failing to return to work after the expiration of her personal leave.
The claimant filed her claim in this case on January 29, 2010 and alleged a panic attack caused by work stress and harassment. Dr. Kleinman performed a psychological examination of the claimant and diagnosed a bipolar disorder with depression. Dr. Kleinman opined that the claimant’s psychological condition was not work-related because her stress was caused by job transfers and performance evaluations, rather than because of an accidental injury in the workplace. Moreover, a witness testified that the claimant’s stress was customary for the retail industry and for the claimant’s position.
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She further testified that the claimant was not specifically targeted for performance reviews and write-ups, but that all managers receive disciplinary actions for poor job performance. The ALJ determined that the claimant failed to establish that she suffered a compensable mental impairment.
The claimant, who represents herself in this matter, asserts that neither Dr. Kleinman nor the ALJ considered her documentary evidence and argues that her mental impairment is due to her employment. She also provides additional commentary concerning this matter.
First, we note that our review is restricted to the record before the ALJ, and the factual assertions made on appeal by the claimant may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995) Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo. App. 1987).
Based on the record before him the ALJ determined that the claimant’s mental impairment is not compensable. We are not persuaded that the ALJ erred in denying the claim for mental impairment.
A claim for benefits based on mental impairment must be “supported by the testimony of a licensed physician or psychologist” and “means a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment.” However, “[a] mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action . . . or similar action taken in good faith by the employer.” § 8-41-301(2)(a), C.R.S.
The ALJ determined that the claimant’s psychological concerns resulted from disciplinary actions taken in good faith by the employer. In addition, the only physician testifying at the hearing opined that the claimant did not suffer a compensable psychological injury. It is therefore apparent from the ALJ’s decision that the claimant failed to establish threshold elements to support her claim for mental impairment.
Moreover, the ALJ credited the opinion of Dr. Kleinman, presented through testimony, that the claimant’s condition was due to job transfers and performance evaluations without an accidental injury and was not work-related for the purposes of the statute. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Furthermore, the existence of evidence that would support a contrary result provides no relief on appeal. Id. No hearing transcript is supplied in support of the appeal; therefore, we must presume that the ALJ’s factual findings based on testimony
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are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988).
We find no error in the ALJ’s determination that the claimant failed to establish a claim for mental impairment.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 15, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
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CORNELIA FRENCH, LAKEWOOD, CO, (Claimant).
BURLINGTON COAT FACTORY, BURLINGTON, NJ, (Employer).
HARTFORD INSURANCE COMPANY OF MIDWEST, Attn: HUMAN RESOURCES, C/O: CLAIM NO: 49146-59480, DENVER, CO, (Insurer).
THOMAS, POLLART MILLER, LLC, Attn: ILENE H. FELDMEIER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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