Opinion
W.C. No. 4-359-644.
March 9, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated July 12, 2010, that found the claim is not compensable under the mental impairment statute. We affirm.
This case has a protracted history including a remand from the Supreme Court of Colorado in 2004. Davison Mobley v. Industrial Claim Appeals Office of State 84 P.3d 1023 (Colo. 2004). It is not necessary to discuss that history in order to resolve the current appeal. We set forth the following essential outline of the factual basis of the claim, in part taken from the supreme court's decision.
The claimant worked as a pharmacist for the employer. The claimant was called to a meeting with her store manager and two security officers in August 1997. As she reached the top of the stairs on her way to the meeting room, one of the security officers allegedly "bumped" her, startling her and causing her to almost fall backward down the stairs. The claimant alleged that during the meeting the room was locked and that she was not permitted to leave. The claimant testified that she was initially unaware of the purpose of the meeting, but asked for a union representative if it was disciplinary in nature. At that point, the claimant alleged that the same security officer who bumped her became agitated, and banged his fists on the table. The store manager then told the claimant to inform her union representative that the meeting concerned an investigation involving her "time card irregularities." Because no union representative could be found, the manager terminated the meeting. It was later found during arbitration that the employer did not have "just cause" for its termination of the claimant. In re AFL-CIO v. King Soopers, Inc., F.M.C.S. Case No. 98-07363.
The claimant reported that shortly after the meeting, she experienced trouble breathing and tightness in her chest. She contacted her physician, Dr. Gipson, who advised her to report to the emergency room. After several hours of observation, the claimant's treating physician diagnosed a stress reaction, but advised that she follow up with her own doctor. Dr. Gipson filled out a disability certificate stating the claimant was totally incapacitated and should not return to work until her symptoms could be further evaluated. The claimant's treating psychiatrist, Dr. Fuller, subsequently diagnosed the claimant with "major depression, single episode without psychosis, severe" and post-traumatic stress disorder related to work. The claimant filed a workers' compensation claim for mental impairment benefits.
In the order here under review the ALJ found that the claimant's claim did not meet all of the requirements of § 8-41-301 C.R.S. Therefore the ALJ denied and dismissed the claim. The claimant, who now appears pro se, brings this appeal. In her original Petition to Review the claimant only listed general allegations of error, derived from § 8-43-301(8) C.R.S. The claimant did not file a Brief in Support of her Petition to Review but has filed a Modified Petition to Review which we will treat as her brief.
To obtain worker's compensation benefits, the claimant must satisfy several statutory conditions. See § 8-41-301, C.R.S. (listing "conditions of recovery"). The legislature has authorized recovery for a broad range of physical injuries. See § 8-42-107(2), C.R.S. (listing scheduled injuries). But it has sharply limited a claimant's potential recovery for mental injuries. See Dilliard v. Industrial Claim Appeals Office, 134 P.3d 407, 410-11 (Colo. 2006) (noting the limitations on claims for mental or emotional stress). In relevant part § 8-41-301 provides as follows:
(2) (a) A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2), "mental impairment" means a recognized, permanent 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. A mental impairment shall not be 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. The mental impairment that is the basis of the claim shall have arisen primarily from the claimant's then occupation and place of employment in order to be compensable. . . .
(c) 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.
(d) The mental impairment which is the basis of the claim must be, in and of itself, either sufficient to render the employee temporarily or permanently disabled from pursuing the occupation from which the claim arose or to require medical or psychological treatment.
The question of whether the claimant met her burden to prove a compensable injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999). Consequently, we must uphold the ALJ's determination if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. Under this standard, we must defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo. App. 1990).
Here the ALJ found that the claimant's testimony that she was bumped, started to fall down some steps, saw herself crumpled at the bottom of the steps, was locked in a room, or was fearful of physical harm was not credible. The ALJ found the testimony of the employer witnesses, Rutt, Ellis and Quenelle, to be credible and persuasive. The ALJ found that nothing the employees of the employer did on August 21, 1997 would have caused the claimant to believe her life was in danger. We perceive no extreme circumstances warranting interference with the ALJ's credibility determinations. Further, the claimant does not specifically dispute these specific findings of fact. In any event we find there is substantial evidence supporting such determination. Tr. (3/12/2010 Rutt) at 4-12; Tr. (3/12/2010 Ellis) at 154-161; Tr. (3/12/2010 Quenelle) at 190-194.
The ALJ also made findings of fact based on the medical record as follows. The claimant gave histories of the event to her medical care providers. The claimant did not mention that she was bumped, started to fall down some steps, saw herself crumpled at the bottom of the steps or was locked in a room to her medical care providers on August 21, 1997, Exhibit F at 33, September 5, 1997, Exhibit H at 39-40, or September 20, 1997; Claimant's Hearing Exhibits at 96.
Again the claimant does not dispute these findings of fact. We again find that there is substantial evidence supporting such determination. In our view, the ALJ drew the reasonable inference from this evidence that if the claimant was bumped, started to fall down the stairs, saw herself crumpled at the bottom of the stairs, locked in a room, or was otherwise fearful of physical harm, it was more likely than not that she would have mentioned it to one of her medical care providers early on. Because these issues are factual in nature, we must uphold the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003) (the standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record).
The ALJ made other detailed and specific findings regarding the medical evidence. We outline some of his findings as follows. Dr. Gamblin's opinion that the claimant had post traumatic stress disorder (PTSD) which developed as a result of the August 21, 1997 incident, and that the incident was not common to all fields of employment because the claimant's relationship with her employer was governed by a union agreement was not credible or persuasive. The opinion of Joanne Whalen, LPC, that a security guard tried to throw her down two flights of stairs, that she caught herself but had vision of herself crumbled up at the bottom of the stairs which resulted in PTSD was not credible or persuasive. Dr. Johnsrud credibly and persuasively opined that the claimant had a panic attack at work on August 21, 1997 but did not appear to have PTSD nor was she depressed. Dr. Weingarten's opinion that the claimant does not suffer from PTSD is credible and persuasive. The claimant does not dispute that these physicians gave these opinions, and 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). Therefore, we are bound by the ALJ's findings concerning the medical evidence.
The ALJ, after making extensive findings of fact, came to the following conclusions regarding the elements necessary to establish a compensable claim under the mental impairment statute. The claim for mental impairment must be supported by the testimony of a licensed physician or psychologist. The claimant suffered from anxiety or an anxiety disorder as a result of the meeting regarding timecard irregularities on August 27, 1997. The claimant met this requirement. The claimant met the burden that the mental impairment that is the basis of the claim must have arisen primarily from the claimant's occupation and place of employment in order to be compensable. The mental impairment that is the basis of the claim must be sufficient to render the claimant temporarily disabled or require medical or psychological treatment. The claimant's anxiety that she suffered as a result of the meeting on August 21, 1997 did require the medical and psychological treatment she received on August 21, 1997 and September 5, 1997. Because the mental impairment was sufficient to require medical and psychological treatment the claimant met this requirement. The psychologically traumatic event must be outside a worker's usual experience. The psychologically traumatic event here was a meeting called by management to discuss timecard discrepancies. Such a meeting is not outside a worker's usual experience. The claimant did not meet this requirement. The psychologically traumatic event must be one that would evoke significant symptoms of distress in a worker in similar circumstances. The credible and persuasive evidence does not show that a meeting with management to discuss timecard discrepancies would evoke significant symptoms of distress in workers in similar circumstances. The claim did not meet this requirement. A mental impairment does not arise out of and in the course of employment if it results from a disciplinary action, work evaluation, or similar action taken in good faith by the employer. The meeting called by the employer to discuss the claimant's time card discrepancies was a disciplinary action, work evaluation, or similar action taken in good faith by the employer. The claimant did not meet this requirement. 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. A meeting to discuss the time an employee worked and to compare the claimed time with the actual time, is common to employees paid by the hour and is common to all fields of employment. The claim did not meet this requirement. The ALJ denied and dismissed the claim because it did not meet the requirements of § 8-41-301(2).
In the modified petition to review the claimant argues that the ALJ erred in finding the claimant had no physical injury. As we understand the argument the claimant contends that in a wrongful termination arbitration, the arbitrator ruled that the claimant had suffered a physical injury. In re AFL-CIO v. King Soopers, Inc., F.M.C.S. Case No. 98-07363. Therefore, the claimant argues that under the doctrine of res judicata the respondents in her workers' compensation claim were barred from relitigating the identical issue that was decided in arbitration. We are not persuaded that the ALJ committed reversible error on this ground.
We first note that the issue before the arbitrator was whether the employer had just cause for discharging the claimant and if not, what was the appropriate remedy. Award of Arbitrator (Exhibit BB at 130). The arbitrator in his award mentioned the claimant's complaints of tightness in her chest, trouble breathing etc., but we do not read the award as determining that the claimant had suffered a physical injury as a result of any action by the employer. We further note the arbitrator specifically found that issue of the claimant's medical condition and disability was exclusively a matter for her workers' compensation claim and that the case in arbitration involved only a breach of contract claim. Award of Arbitrator (Exhibit BB at 149).
We do not read the arbitrator's award as determining whether the claimant suffered a physical injury. Further, even if the award can be read as reaching that determination we are not persuaded that that the decision of the arbitrator should be given preclusive effect in an action for workers' compensation benefits because the issues in the two proceedings are not identical. See Industrial Com'n of State v. Moffat County School Dist. RE No. 1 732 P.2d 616 (Colo. 1987) (school board's findings and conclusions in the dismissal proceeding were not binding on the parties in the unemployment compensation proceeding in that the issues were different); See also Andrews v. Climax Molybdenum, W.C. 3-792-987 (June 23, 1988) (a determination in an unemployment proceeding is not binding on the ALJ).
Moreover, although the claimant in her Hearing Memorandum raised the issue of res judicata it was not on the ground that the arbitrator had determined the claimant suffered a physical injury. Rather the claimant argued before the ALJ that the issue of whether the employer had just cause for her discharge had been resolved by the arbitrator. Thus we need not consider the argument that the arbitrator determined the claimant had suffered a physical injury because it was first advanced on appeal. City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo. App. 2002); Kuziel v. Pet Fair, 948 P.2d 103 (Colo. App. 1997).
The claimant next contends the ALJ erred by setting aside the arbitrator's determination that there was no just cause for her termination. However, we do not read the ALJ's order as setting aside the arbitrator's determination that the employer did not have just cause for the claimant's discharge. To the contrary the ALJ noted findings of fact made by the arbitrator and essentially adopted those as facts for the purpose of the workers' compensation matter. As part of this adoption of certain facts, the ALJ specifically noted that the arbitrator had determined that the employer did not have just cause to discharge the claimant on or about November 20, 1997. Nevertheless the ALJ found that the meeting called by the employer to discuss the claimant's time card discrepancies was a disciplinary action, work evaluation, or similar action taken in good faith by the employer. We are not persuaded that a determination that the employer did not have just cause for the discharge is equivalent to a determination that the work evaluation taken by the employer was not taken in good faith.
The claimant also argues that the ALJ used dictum from the arbitrator's award in discussing the good faith of the employer. We again note that we do not read the arbitrator as having directly commented on "good faith." Rather the arbitrator focused on the issue of whether the employer had just cause for her discharge. To the extent that the claimant is referring to facts from the arbitration award generally concerning the issue of "just cause" we do not consider them to have been dictum because they were integral to the resolution before the arbitrator. See Maryland Casualty Co. v. Messina, 874 P.2d 1058 (Colo. 1994) (dicta is a determination not integral to the resolution of the issues before the court).
To the extent that the ALJ can be said to have relied upon the arbitrator's award on the issue of good faith we note that there were a number of findings of fact made by the arbitrator that suggest the evaluation was taken in good faith. The ALJ found that a co-worker had complained to management about the amount of time the claimant took for her lunch break and that she did not arrange her lunch schedule with the other pharmacists before she left and did not tell them how long she would be or when she would come back and that she left before the end of her shift in the afternoon. The arbitrator noted the existence of troubling disparities between the actual and recorded start time, lunch break, and end time for the claimant and that such disparities might well provide a proper basis for corrective discipline of some sort. To the extent that the claimant argues that the ALJ was compelled by the arbitrator's decision to find that the meeting called by the employer to discuss the claimant's time card discrepancies was a work evaluation not taken in good faith by the employer, we are unpersuaded by such argument.
The claimant also appears to argue that her claim should be decided according to the precepts of federal labor policy and that the present matter is preempted by federal labor law dealing with collective bargaining agreements. However, the preemption doctrine is predicated on the supremacy clause of the U.S. Constitution. Belgard V. United Airlines, 857 P.2d 467 (Colo. App. 1992). A preemption claim is a challenge to the constitutionality of a statute, and therefore a determination by us that § 8-42-103 is preempted by Federal labor law would constitute a finding that a state statute is unconstitutional. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo. App. 1995). Administrative agencies do not have the authority to pass on the constitutionality of statutes. That function may be exercised only by the judicial branch of government. Arapahoe Roofing Sheet Metal, Inc. v. Denver, 831 P.2d 451 (Colo. 1992). Therefore, we have no basis for interfering with the ALJ's order on this ground.
IT IS THEREFORE ORDERED that the ALJ's order dated July 12, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Krikscrum
____________________________________ Thomas Schrant
CHERYL MOBLEY, STONE MOUNTAIN, GA, (Claimant).
KING SOOPERS, DENVER, CO, (Employer).
SEDGWICK, CMS — SALT LAKE CITY, Attn: SHARMIE JENSEN, LEXINGTON, KY, (Insurer).
MCCREA BUCK, LLC, Attn: JAMES B. BUCK, ESQ., DENVER, CO, (For Respondents).
SEDGWICK, CMS, SALT LAKE CITY, UT, (Other Party).