Opinion
W.C. No. 4-799-803.
March 12, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated December 2, 2009, that denied and dismissed the claimant's request for Workers' Compensation benefits based on mental impairment. We affirm.
The claimant worked as a corporate trust relationship specialist for the employer. The ALJ credited the testimony of the claimant's supervisor. The following is a summary of the supervisor's testimony. The claimant's job duties evolved over time to require additional client contact. The claimant's job duties required her to communicate effectively in the English language. The claimant's lack of English skills became more problematic over time because of increased client contact. The claimant's communication difficulties with coworkers caused misunderstandings. The claimant's performance reviews in 2006 and 2007 showed the claimant continued to exhibit difficulties in communicating with customers and managers. Because the claimant had been unsuccessful in meeting the improved communication skills the employer implemented a Performance Improvement Plan on August 7, 2007. The claimant did not complete her Performance Improvement Plan. The claimant took a leave of absence based on a disability resulting from anxiety and depression. The claimant did not return to work for the employer.
In addition, the ALJ credited the opinions of Dr. McCranie. Dr. McCranie's opinions are found in Exhibit J. Dr. McCranie opined that the claimant's symptoms of insomnia, crying, low self-esteem, and worthlessness preceded both her employment review and termination. Dr. McCranie concluded that the claimant's psychological symptoms affected her work rather than the other way around.
The ALJ determined that any negative impact on the claimant's psychological condition did not arise out of and in the course of her employment because it resulted from a disciplinary action or work evaluation that was taken in good faith by the employer. The ALJ further determined that the claimant had not demonstrated that she suffered from a permanent mental impairment as a result of a psychologically traumatic event that was outside of a similarly situated worker's experience. The ALJ concluded that the claimant had failed to establish by a preponderance of the evidence that she suffered a permanent mental impairment from an accidental injury arising out of and in the course and scope of her employment.
The claimant argues on appeal that she established her entitlement to benefits based on a mental impairment. The claimant, citing 8-41-302 C.R.S. 2009 contends that all of the evidence undisputedly showed that her depression was caused solely by the hazardous work environment, by the harassment at work, all of which she would not have been equally exposed to outside the employment However, the ALJ's findings to the contrary preclude an award of benefits under the circumstances.
Section 8-41-302(1) provides that:
"Accident", "injury", and "occupational disease" shall not be construed to include disability or death caused by or resulting from mental or emotional stress unless it is shown by competent evidence that such mental or emotional stress is proximately caused solely by hazards to which the worker would not have been equally exposed outside the employment.
Further, § 8-41-301(2)(a), C.R.S. 2009 provides 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, layoff, 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.
A claimant must establish entitlement to benefits by a preponderance of the evidence. Qual-Med, Inc. Indus. Claim Appeals Office, 961 P.2d. 590, 592 (Colo. App. 1998). The causes of a claimant's mental impairment and whether those causes are common to all fields of employment are questions of fact to be resolved by the ALJ. Public Service v. Industrial Claim Appeals Office, 68 P.3d 583 (Colo. App. 2003). Further, the questions whether a psychologically traumatic event is "generally outside a worker's usual experience," or whether it would evoke "significant symptoms of distress in a worker in similar circumstances," are also factual questions for resolution by the ALJ. Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004).
Because these issues are factual in nature, we must uphold the ALJ's findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2009. Substantial evidence is that quantum of probative evidence that would support a reasonable belief in the existence of a fact without regard to conflicting evidence or inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo. App. 1993). This 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 resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record.
Here, the claimant has failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ's factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). Further, the medical record containing the report of Dr. McCranie constitutes substantial evidence supporting the ALJ's dispositive findings. The claimant makes certain factual assertions, which we assume she contends are supported by her testimony at the hearing. However, as noted above, the record before us does not contain a transcript. The claimant also brings our attention to favorable portions of the record taken from her job reviews over the years. However, the fact that some evidence, if credited, might support a different result affords no basis for relief on appeal. Weld County School District Re-12 v. Bymer, 955 P.2d 550 (Colo. 1998).
Here, we have reviewed the record and the ALJ's findings of fact and conclusions of law. The ALJ's findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. The ALJ correctly applied the law and did not err in denying benefits. Accordingly, we perceive no basis on which to disturb the ALJ's order. IT IS THEREFORE ORDERED that the ALJ's order dated December 2, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
IDA SOLOMONIK, TUALATIN, OR, (Claimant)
NATHAN, BREMER, DUMM MYERS, PC, Attn: BENJAMIN E TRACY, ESQ., DENVER, CO, (For Respondents)
SPECIALTY RISK SERVICES, DENVER, CO, (Other Party)