Summary
In DuShane v. Beneficial Colorado, Inc., W.C. No. 4-218-217 (July 17, 1996), aff'd., DuShane v. Beneficial Colorado Inc., (Colo.App. No. 96CA1404, December 27, 1996) (not selected for publication), we concluded physical symptoms from a purely emotional stimulus do not constitute a physical injury or "physical component," as described in Oberle.
Summary of this case from In re Esser, W.C. NoOpinion
W.C. No. 4-218-217
July 17, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which denied the claim for benefits based upon mental impairment. We affirm.
The claimant does not contest the ALJ's findings of fact. The ALJ found that in January 1991 the claimant came under the supervision of a new branch manager. The new supervisor imposed "production goals" and the claimant failed to meet her objectives. The supervisor then counseled the claimant concerning her productivity. However, the claimant interpreted the supervisor's actions as "intimidating and degrading." The claimant also believed she was being treated differently than other employees.
The Claimant testified that in 1992 she became depressed and often suffered from nausea and diarrhea as a result of the workplace stress. Eventually, the claimant was forced to leave the job as "a result of her emotional/psychological condition."
The ALJ concluded that the claim for benefits was predicated on "mental impairment" within the meaning of § 8-41-301(2)(a), C.R.S. (1995 Cum. Supp.). Consequently, the ALJ denied the claim because he found that the claimant's stress resulted from a "good faith" work evaluation, and because it was based in part on "facts and circumstances that are common to all fields of employment."
I.
On review, the claimant first contends that she is not making a claim for "mental impairment" within the meaning of § 8-41-301(2)(a) because the claim for benefits does not involve a single "psychologically traumatic event." Rather, the claimant argues that her claim arises out of a series of stressful events, and therefore, the claim falls outside the express language of the statute. We reject this argument.
We have previously rejected a similar argument in McCallum v. Dana's Housekeeping, W.C. No. 4-211-605, February 22, 1996. In that case, we applied the rule of statutory construction which states that "the singular includes the plural." Section 2-4-102, C.R.S. (1980 Repl. Vol. 1B). Consequently, we concluded that the phrase "psychologically traumatic event" must be read to mean that claims for mental impairment may be based upon multiple traumatic events.
Moreover, we agree with the respondents' argument that because the statute defines "mental impairment" as "arising from an accidental injury," a combination of stressful events are necessarily contemplated by the statute. The terms "accident", "injury", and "injuries" are defined as including disability "resulting from accident or occupational disease." Section 8-40-201(2), C.R.S. (1995 Cum. Supp.). An occupational disease results from the "conditions under which work was performed," but is not associated with a single time, place and cause. Section 8-40-201(14), C.R.S. (1995 Cum. Supp.); Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). It follows that, because § 8-41-301(2)(a) refers to accidental injuries, and accidental injuries by definition include occupational diseases, § 8-41-301(2)(a) cannot be read as excluding claims based upon multiple stressful events.
II.
The claimant's next contention is that the claim falls outside the purview of § 8-41-301(2)(a) because she experienced a "physical injury" in connection with her mental impairment. In support of this proposition, the claimant cites the ALJ's finding that she experienced physical symptoms including "nausea and diarrhea as a result of the workplace stress." The claimant asserts that it does not matter, for purposes of § 8-41-301(2)(a), whether the "physical injury" comes before or after the "mental impairment." We reject this argument.
Section 8-41-301(2)(a) states that a mental impairment means a disability resulting from an accidental injury "when the accidental injury involves no physical injury." Recently, in Oberle v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 95CA0934, May 2, 1996), the court of appeals sought to determine when a claim "involves" a "physical injury" so as to remove the case from the special proof requirements set forth in § 8-41-301(2).
The Oberle court stated that the purpose of the physical injury requirement is to differentiate "between cases in which physical injury causes mental impairment ("mental-physical") [sic] and those where mental impairment follows solely an emotional stimulus ("mental-mental")." The court observed that cases in which a "claimed disability is based on emotional or psychological causes and in which physical injury is absent are less subject to direct proof and more susceptible to being frivolous in nature." Consequently, the court concluded that injuries which result from purely "an emotional stimulus that results in mental impairment" are "mental-mental" claims which are subject to the special proof requirements. Conversely, the court held that "if there is a physical component that contributes to the injury, the restrictions contained in the mental impairment statute are not implicated."
It must be noted that the Oberle decision does not, on its face, purport to decide whether cases involving an "emotional stimulus" which causes a "physical injury" fall within the ambit of § 8-41-301(2)(a). However, we interpret Oberle as implying that such cases are subject to the statute. This is true because cases in which a purely emotional stimulus is alleged to have caused identifiable physical symptoms are far less subject to direct proof than cases in which a physical component occurs simultaneous to or in conjunction with the "psychologically traumatic event" underlying the claim. Moreover, the Oberle court's focus on the "stimulus" to the mental impairment appears to require a determination of whether the physical injury is a cause of the mental impairment, not whether physical injury is a result of the impairment.
Our conclusion also finds support in Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). In Donlon, the court was required to determine an equal protection challenge to that portion of § 8-41-301(2)(b) which restricts claims based on mental impairment to twelve weeks of permanent disability benefits. The court rejected the challenge stating that the legislature could rationally conclude that the "non-physical cause or causes of mental impairments may be difficult to ascertain." The following language is pertinent:
"Here, the General Assembly could reasonably have concluded that, if an employee has not suffered a physical injury on the job or has not been a victim of a crime of violence, it is less likely that the conditions of employment were the primary cause of that employee's mental impairment. Indeed, this distinction between mental impairments caused in conjunction with a physical injury or while the individual is within a "zone of danger" and those not resulting from such causes has long been recognized as a proper distinction to draw under the common law for the award of tort damages for mental suffering based on negligence." (Emphasis added.)
The foregoing language suggests that the Donlon court believes that the "physical injury" contemplated by § 8-41-301(2)(a) must occur on the job and "in conjunction with" the emotional stimulus. The language comports with the Oberle court's statement that the "physical component" must be a "stimulus" to and "contribute" to the impairment. See also, Pate v. Regional Transportation District, W.C. No. 4-222-307, December 7, 1995 (holding, prior to Oberle, that § 8-41-301(2)(a) governs cases involving "mental-physical" claims).
Moreover, to accept the claimant's assertion that it does not matter whether the "physical injury" develops after the traumatic event would substantially eviscerate § 8-41-301(2)(a). As a practical matter, few if any persons experiencing stress are entirely free from physical symptoms of one type or another. Thus, if the claimant's argument were to hold, § 8-41-301(2)(a) would hardly ever apply since almost all cases would involve some "physical component" amounting to a "physical injury." We do not believe that such a result would be consistent with the legislative intent underlying § 8-41-301(2)(a).
Applying these principles here, we conclude that the ALJ correctly determined that the claim is subject to § 8-41-301(2)(a). The claimant is not asserting that she experienced a "physical injury" in conjunction with the allegedly stressful events, or that she experienced any on-the-job "physical injury" which contributed to her stress. Thus, the claimant did not sustain a "physical injury" within the meaning of § 8-41-301(2)(a), she merely experienced symptoms of "mental impairment" which are physical in nature.
IT IS THEREFORE ORDERED that the ALJ's order dated February 8, 1996, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona HalseyNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1990 Cum. Supp.).
Copies of this decision were mailed July 17, 1996 to the following parties:
Joyce K. DuShane, 1224 Canvasback Ct., Ft. Collins, CO 80525-8835
Beneficial Colorado, Inc., 300 Beneficial Center, Peapack, NJ 07977
Travelers Insurance Co., Attn: Debra Shoemaker, P. O. Box 173762, Denver, CO 80217-3762
Jack Taussig, Jr., Esq., 1919 14th St., #805, Boulder, CO 80302 (For Claimant)
Lawrence D. Blackman, Esq. and Christina M. Middendorf, Esq., 1290 Broadway, #708, Denver, CO 80203 (For Respondents)
By: ______________________________