Opinion
W.C. No. 4-216-159
September 25, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed her claim based upon mental impairment, as defined by § 8-41-301(2), C.R.S. 1997. We affirm.
Crediting the opinions of the claimant's treating psychiatrist, Dr. Civish, the ALJ found that the claimant suffered mental impairment from the cumulative effects of work-related stressors during her employment for the Public Service Company of Colorado (employer). The ALJ determined that the stressors included being shunned by her co-workers, a perception that her ideas were ignored during departmental meetings, and exposure to racial jokes. The stressors included actions by the claimant's co-employees and the employer prior to January of 1994, some of which were taken in "bad faith." However, the ALJ found that in January 1994, the claimant was assigned a new supervisor. Although the claimant perceived that her ideas were not taken seriously at the subsequent departmental meetings, the ALJ found that the claimant's perception was inaccurate, and that the circumstances involved in the departmental meetings are common to all fields of employment.
The ALJ further found that the reorganization of the claimant's job duties in 1994 was one of the work-related stressors which caused the claimant's mental impairment. However, the ALJ found that the employer's action in reorganizing the claimant's job was taken in "good faith."
Moreover, the ALJ found that the job reorganization, which did not affect the claimant's title or pay, is common to all fields of employment. Therefore, the ALJ concluded that the claimant failed to sustain her burden of proof, and denied the claim.
On review, the claimant recognizes that mental impairment is not considered to arise out of and in the course of employment if it results from a "disciplinary action, work evaluation, job transfer, lay-off, demotion, promotion, termination, retirement or similar action taken in good faith by the employer." Section 8-41-301(2)(a). However, the claimant contends that her mental impairment did not "result from" the employer's "good faith" actions in 1994. Rather, she contends that her mental impairment resulted from the employer's "bad faith" actions prior to 1994, which caused her to believe that the employer was still acting in bad faith during 1994. Therefore, the claimant argues that the ALJ erred as a matter of law in denying the claim based upon the commonality of the factors which occurred after January 1994. We perceive no error.
The cause or causes of a claimant's mental impairment, and the commonality of those causes are questions of fact to be resolved by the ALJ. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Accordingly, we are bound by the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997; General Cable Co. v. Industrial Claim Appeals Office, supra.
Here, the ALJ's finding that the claimant's mental impairment was caused by employment stressors which occurred before and after January 1994, is supported by substantial evidence in the testimony of Dr. Civish and the claimant. (Civish depo. p. 25; Tr. February 9, 1995, pp. 55-56, 67, 69). It is also consistent with the evidence that the claimant did not seek psychiatric treatment for the work-related stress until April 1994, and was able to continue working through May 1994. (Civish depo. p. 11). In fact, the claimant testified that her inability to work after May was due to the "continued situation" which was being "perpetuated." (Tr. February 9, 1995; p. 78). Although the evidence in this respect may be susceptible of conflicting inferences, this does not provide a basis for disturbing the ALJ's factual resolution.
The claimant also argues that the legal standard applicable to § 8-40-301(2)(c) is whether the "totality of circumstances" reflect a claim based on facts or circumstances common to all fields of employment. We disagree.
Section 8-41-301(2)(c), C.R.S. 1997 provides that:
"The claim of mental impairment cannot be based, in whole or in part, upon facts and circumstances that are common to all fields of employment." (Emphasis added).
The phrase "facts and circumstances that are common to all fields of employment" refers to conditions generally inherent in every work situation. See Holme, Roberts and Owens v. Industrial Claim Appeals Office, 800 P.2d 1332 (Colo.App. 1990). A condition is "common" to all fields if it is usual, ordinary or customary. White Star Linen v. Industrial Claim Appeals Office, 787 P.2d 189 (Colo.App. 1989).
We adhere to our previous holding that where the claim is based upon multiple emotional stressors, each stressor must be assessed separately to determine whether the claim is based "in whole or in part" upon facts and circumstances common to all fields of employment. See Harry v. Longmont Daily Times-Call, W.C. No. 3-992-069, March 19, 1993, aff'd Harry v. Longmont Daily Times-Call (Colo.App. No. 93CA0546, February 16, 1994) (not selected for publication).
The claimant does not dispute the ALJ's findings that her perceptions regarding the 1994 actions of the employer were wrong, and that the 1994 employment stressors are common to all fields of employment. Consequently, the ALJ's findings support the conclusion that, at least part of the claim of mental impairment is based upon facts and circumstances which are common to all fields of employment.
Because the claimant bears the burden to prove every element of a claim of mental impairment, the failure to prove any one element is fatal to the claim. See Stephens v. Carlin Dodge, supra. Therefore, the ALJ did not err in denying the claim for failure to establish the proof required by § 8-41-301(2)(c).
IT IS THEREFORE ORDERED that the ALJ's order dated March 22, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona HalseyNOTICE 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997
Copies of this decision were mailed September 25, 1997 to the following parties:
Mildred E. Trujillo, 12037 W. Quincy Pl., Morrison, CO 80465
Kimberly Costin, Public Service Co. of Colorado, P.O. Box 840, Suite 700, Denver, CO 80201-0840
Scott Meiklejohn, Esq., 1120 Lincoln St., Ste. 1001, Denver, CO 80203-2138 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondent)
BY: _______________________________