Opinion
W.C. No. 4-649-193.
July 21, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated March 31, 2010, that denied and dismissed the claimant's petition to reopen. We affirm.
The claimant suffered an industrial injury to his back on April 11, 2005. There have been several hearings, orders and appeals on this claim. We reference only those we consider currently relevant. The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician opined that the claimant suffered a 23 percent whole person impairment due to his low back condition and zero percent mental impairment because the claimant did not meet diagnostic criteria. ALJ Walsh issued an order determining that the respondents had not overcome the DIME physician's opinion by clear and convincing evidence.
The claimant filed a petition to reopen alleging a change in condition and a hearing was held on September 30, 2009 before ALJ Jones. ALJ Jones denied and dismissed the petition to reopen and we affirmed that order. During the pendency of the claimant's appeal of the order issued by ALJ Jones, the claimant again sought to reopen his claim based upon a change of condition since the last hearing held on September 30, 2009. The claimant also sought to reopen his claim due to economic circumstances without a showing of a change in his medical condition. The second petition to reopen was heard before ALJ Stuber, who issued the order here under appeal. ALJ Stuber found that the preponderance of the evidence did not show that the claimant's medical condition from the work injury had changed. The ALJ, citing Lucero v. Climax Molybdenum Co. 732 P.2d 642 (Colo. 1987), determined that a reopening on the ground of change in economic circumstances was precluded. The claimant brings this appeal.
I.
The claimant first contends that the ALJ erred in determining that a change in the claimant's economic condition would not permit the ALJ to reopen the case. We are not persuaded that the ALJ committed error.
A reopening based on worsened condition is predicated on a deterioration in the claimant's "physical condition." Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987). Insofar as the claimant contends that a change in his economic circumstances warrants reopening, we disagree. It has long been established that the term "change of condition" as used in § 8-43-303 does not refer to a change in economic circumstances. Lucero v. Climax Molybdenum Co., supra.; Ward v. Ward, 928 P.2d 739 (Colo. App. 1996); Dibbens v. Excel Corporation, W. C. No. 4-270-519 (October 18, 2004).
The claimant contends that changes in § 8-43-303 made by the legislature in 1991 modified the reopening section of the act in such a way as to allow claimants to reopen their claims based upon a change in economic circumstances. Effective July 1 1991 § 8-43-303(3) was added. Colo. Sess. Laws 1991, Ch. 219 at 1323. Section § 8-43-303(3) now provides that in cases where a claimant is determined to be permanently totally disabled, any such case may be reopened at any time to determine if the claimant has returned to employment.
The claimant argues that if an employer is allowed to reopen a case for economic reasons, an injured worker must be extended the same right. The claimant contends to hold otherwise would be an obvious denial of equal protection. However, this argument has been rejected by the Colorado Court of Appeals. In Calvert v. Industrial Claim Appeals Office 155 P.3d 474 (Colo. App. 2006) the court noted that § 8-43-303(3), which gives employers the right to reopen a permanent total disability award at any time after the injured worker has resumed employment, but gives no such corresponding right to claimants, does not violate equal protection. The court found that legitimate purposes underly the imposition of such time limits on claimants' ability to reopen to avoid inherent administrative and practical difficulties, while the different standard is imposed upon employers who are seeking to reopen for the purpose of discontinuing benefits. We perceive no error in ALJ Stuber's dismissal of the reopening based on a claim of a change in the claimant's economic condition
II.
The claimant next contends ALJ Stuber abused his discretion in denying the claimant's petition to reopen his claim based on a change in his medical condition. The claimant concedes that there has been no change in his physical condition. However, the claimant argues that all medical providers agree that the claimant now suffers depression resulting from his pain and hopelessness caused by the industrial injury. The claimant argues that there is absolutely no medical testimony to the contrary. Rather the claimant argues that he had no psychological impairment as of the date of the DIME and since he now has been diagnosed as having depression his medical condition, as a matter of law, has deteriorated. We are not persuaded that ALJ Stuber abused his discretion.
Section 8-43-303, C.R.S., permits a claim to be reopened based upon "a change in condition." The power to reopen under the provisions of § 8 43-303 is permissive and left to the sound discretion of the ALJ. Consequently, we may not interfere with the ALJ's decision unless the record reveals fraud or a clear abuse of discretion. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Osborne v. Industrial Commission, 725 P.2d 63 (Colo. App. 1986). An abuse of discretion is not shown unless the ALJ's order is beyond the bounds of reason, as where it is contrary to the law or not supported by the evidence. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
When considering the sufficiency of the evidence, we must uphold the ALJ's factual findings if supported by substantial evidence. Section 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). We specifically note that we may not interfere with the ALJ's decision to credit the testimony of a witness unless, in extreme circumstances, the testimony is overwhelmingly rebutted by such hard, certain evidence the ALJ would err as a matter of law in crediting it. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo. App. 2000).
ALJ Stuber determined that the preponderance of the evidence failed to demonstrate that the claimant suffered a change in his psychological condition as a natural consequence of the industrial injury, following the September 30, 2009 hearing, held before ALJ Jones. In support of that determination ALJ Stuber made the following findings of fact. ALJ Jones in her order found that the claimant's depression was due to his frustration that his claim had not settled and was not due to his chronic pain. The record evidence shows the same facts for the period after the September 30, 2009 hearing. The claimant reported an increase in depressive problems in November 2009, after issuance of the October 30 order denying his first petition to reopen. Dr. Shockney recorded a history that the depression and anger was due to the claimant's five years of pain and his belief that his medical treatment had not been optimal. At hearing, the claimant again admitted his frustration that his claim had not settled. The claimant also admitted that he had a family history of suicide. Dr. Hattem and Dr. Sacha again determined that the claimant remained at maximum medical improvement (MMI) while he obtained post-MMI treatment by Dr. Shockney. Dr. Hattem opined that the claimant was no longer at MMI. However, the ALJ found that Dr. Richman's opinion was not persuasive that the claimant's condition worsened.
The claimant contends that there is no evidence that the claimant's mental impairment has not increased. However, we are not persuaded that it is relevant whether the claimant's mental impairment had increased from what it was at the time of the September 30, 2009 hearing. ALJ Jones found that the claimant's depression was not the result of the industrial injury, but was caused by his frustration that his case was not over after four and one-half years. On appeal, we affirmed that determination. ALJ Stuber found that the claimant failed to prove by a preponderance of the evidence that he suffered a change of psychological condition as a natural consequence of the industrial injury.
A claimant suffers a "worsening" of a pre-existing condition if the change is the natural and proximate consequence of a prior industrial injury, without any contribution from a separate, intervening causative factor. Vega v. City of Colorado Springs, W. C. Nos. 3-986-865; 4-226-005 (March 08, 2000). The issue of whether the claimant's condition is the natural and proximate progression of the original industrial injury or a new injury is one of fact for resolution by the ALJ based upon the evidentiary record. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985).
Here, ALJ Stuber concluded that the claimant failed to prove by a preponderance of the evidence that he suffered a change of psychological condition as a natural consequence of the industrial injury. Therefore, it is irrelevant whether the claimant's mental impairment had increased from what it was at the time of the September 30, 2009 hearing because ALJ Stuber found that the depression was not a natural consequence of the industrial injury.
The claimant's arguments on psychological issues are similar to the arguments he made previously regarding his contention that ALJ Jones erred in her determination that the claimant's psychological issues resulted from litigation stress. We note that issue preclusion was raised by the respondents. ALJ Stuber's order did not directly address that argument, perhaps because the order of ALJ Jones was under appeal and was not final at that point. We additionally note that there was no appeal of our April 12, 2010 order and that the order is now final. In any event ALJ Stuber's conclusion that the claimant failed to prove by a preponderance of the evidence that he suffered a change of psychological condition as a natural consequence of the work injury is consistent with ALJ Jones's conclusion regarding the causal connection between the claimant's psychological issues and the industrial injury.
Moreover, even if it was relevant whether the claimant had suffered a change of psychological condition we understand the ALJ's order to be that he did not. Here ALJ Stuber made the following findings of fact comparing the claimant's evidence in his hearing on his second petition to reopen compared to the evidence presented at the hearing on the claimant's first petition to reopen. The claimant admitted testifying at the first hearing that he developed depression due to his chronic pain. The claimant also testified at the second hearing that he developed depression due to chronic pain. The claimant admitted that he also testified at the first hearing that he was frustrated that his case had not settled and was still in litigation four and one-half years after he sustained his injury. The claimant testified that he wants his case to be over. At the second hearing, the claimant provided the same testimony. The claimant testified that he recalled testifying at the first hearing that he did not care if he lived, died, or arose from bed in the mornings and that he still did not at the time of the second hearing. At the second hearing, the claimant testified that his brother and his cousin both committed suicide. The claimant agreed that depression might run in his family. The claimant testified at the first and the second hearing that the physicians have not done enough to relieve his pain. The claimant does not challenge these findings directly. In any event, there is in our view, substantial evidence supporting these findings. Tr. at 37-46.
In addition, ALJ Stuber relied on the testimony of Dr. Hattem who disagreed with Dr. Richman that the claimant was no longer at MMI and that frustration could lead to depression. Exhibit L at 45. Further Dr. Hattem testified that the claimant did not sustain a worsening of condition and that the medical treatment the claimant is receiving should be considered maintenance care. Exhibit L at 46.
In our view the claimant's testimony and the opinions of Dr. Hattem constitute substantial evidence supporting the ALJ's determination that the claimant failed to prove by a preponderance of the evidence that he suffered a change of psychological condition as a natural consequence of the industrial injury. We perceive no reason to interfere with the ALJ's determination. Section 8-43-301(8).
III.
The claimant further contends that the ALJ erred in failing to require the respondents to prove "litigation stress" by the standards set forth in § 8-41-301(2)(a), C.R.S. We are not persuaded that the ALJ erred.
The argument presently made by the claimant is similar to the argument made by him on appeal of the order entered by ALJ Jones denying the claimant's first petition to reopen. The claimant cited Jarosinski v. Industrial Claim Appeals Office 62 P.3d 1082 (Colo. App. 2002) and argued that the burden was on the respondents to prove that there was litigation stress and that the litigation stress caused the depression. We rejected this argument, noting that we did not read Jarosinski as changing the usual rule of burden of proof in reopening cases.
Here we view the issue as a narrow one. The claimant to prevail on his petition to reopen must demonstrate that his claimed psychological impairment is causally connected to the industrial accident and that it has worsened since the last hearing held on September 30, 2009. As noted above we affirm the ALJ's determination that the claimant failed to carry this burden. Nevertheless as we understand the claimant's argument, in an attempt to carry that burden the claimant contends that the respondents must prove "litigation stress" by the standards set forth in § 8-41-301(2)(a), C.R.S. The claimant argues that ALJ Stuber erred in failing to impose that duty on the respondents.
It is provided in § 8-41-301(2)(a) as follows:
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.
In interpreting statutes, we give effect to the legislature's intent, and if the statutory language is clear and unambiguous, we give the words their ordinary meaning and apply the statute as written. See Cochran v. West Glenwood Springs Sanitation Dist., 223 P.3d 123, 125-26 (Colo. App. 2009). In doing so, we must read and consider the statute as a whole and interpret it in a manner giving consistent, harmonious, and sensible effect to all of its parts. Lujan v. Life Care Centers, 222 P.3d 970, 973 (Colo. App. 2009). We should not interpret the statute so as to render any part of it either meaningless or absurd. Id.
We understand the plain meaning of § 8-41-301(2) to be an imposition of rigorous proof requirements on claimants seeking compensation for mental impairment. We do not read § 8-41-301(2) as placing any special proof requirements on respondents when defending a claim on the issue of the causation of mental impairment. In our view, this construction is consistent with the legislative purpose. The court has instructed us that the legislative purpose in enacting § 8-41-301(2) was to establish the proof requirements for compensability of a stress-related claim in an attempt to prevent frivolous and unnecessary claims. Tomsha v. City of Colorado Springs 856 P.2d 13 (Colo. App. 1992).
IT IS THEREFORE ORDERED that the ALJ's order dated March 31, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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John D. Baird
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Thomas Schrant
ALBERT SIEGMUND, 3580 VAN TEY LINGER DR #A, COLORADO SPRINGS, CO, (Claimant).
FORE PROPERTY COMPANY, Attn: HOWARD STOCKING, WESTLAKE VILLAGE, CA, (Employer).
TRAVELERS INDEMNITY CO, Attn: MS MARCHELLE ROBINSON, DENVER, CO, (Insurer).
LAW OFFICE OF WILLIAM ALEXANDER, JR., P.C., Attn: WILLIAM A. ALEXANDER, JR., ESQ., AUSTIN BLUFFS PKWY STE B, COLORADO SPRINGS, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: EMILY F AHNELL, ESQ/ERIC J POLLART, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).