Jarosinski v. Indust. Claim Appeals Office, No. 02CA0332.

• Docket Nº: No. 02CA0332.
• Citation: 62 P.3d 1082
• Case Date: December 05, 2002
• Court: Court of Appeals of Colorado

62 P.3d 1082

Elzbieta JAROSINSKI, Petitioner,
v.
INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, Unique Casual Restaurants/Fuddruckers, and Insurance Company of the State of Pennsylvania, Respondents

No. 02CA0332.

Colorado Court of Appeals, Div. II.

December 5, 2002.

62 P.3d 1083

Law Office of O'Toole & Sbarbaro, P.C., Neil D. O'Toole, Denver, Colorado, for Petitioner

Ken Salazar, Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

Treece, Alfrey, Musat & Bosworth, P.C., James B. Fairbanks, Denver, Colorado, for Respondents Unique Casual Restaurants/Fuddruckers and Insurance Company of the State of Pennsylvania.

Opinion by Judge CASEBOLT.

Claimant, Elzbieta Jarosinski, seeks review of a final order of the Industrial Claim Appeals Office (Panel) denying her petition to reopen. We affirm.

Claimant sustained an admitted work-related injury in November 1997 when she fell at work, striking her head and neck. Before that injury, she had a medical history of preexisting migraine headaches, dizziness, imbalance, and other problems. The Administrative Law Judge (ALJ) found that the injury temporarily aggravated the migraine headaches and dizziness and authorized treatment for imbalance, visual problems, and depression.

In November 1999 a physician performing a division-sponsored independent medical examination (DIME) placed claimant at maximum medical improvement (MMI). Although he initially assigned a nine percent permanent impairment rating, the physician

62 P.3d 1084

retracted it after viewing videotapes showing claimant performing activities that were inconsistent with the symptoms and disability she had reported

Claimant sought a hearing to overcome the DIME physician's opinions concerning MMI and impairment. Following that hearing in March 2000, the ALJ found against claimant, denied her claim for medical benefits after the date of MMI, and denied and dismissed the claim for permanent medical impairment benefits. Claimant did not appeal that determination.

Claimant filed a petition to reopen in July 2000, alleging that her condition had worsened, as exhibited by increasing depression and visual problems. After a hearing, the ALJ found that claimant had failed to prove an entitlement to reopen because of a change of condition. The ALJ also found that claimant's depression had worsened after the March 2000 hearing and, especially, after he issued his written order. However, he determined that any change of condition was not a natural consequence of the work injury, but resulted from claimant's experiences during the March 2000 litigation, when she had to watch surveillance videotapes of "her apparently inconsistent and possibly fabricated complaints."

The ALJ also concluded that claimant had failed to prove that her continuing migraine headaches and dizziness problems were due to the work injury. In so finding, the ALJ determined that his March 2000 order was conclusive that claimant's continuing headaches and dizziness were not work-related. Thus, the ALJ applied the doctrine of collateral estoppel to preclude relitigation of that issue.

On review, the Panel determined that substantial evidence supported the ALJ's evidentiary finding that the worsening of claimant's depression was caused solely by her reaction to the litigation and the order denying medical benefits. The Panel also determined, as a matter of law, that psychological problems resulting from "litigation stress" and entry of an adverse order were not sufficiently similar to "quasi-course of employment" injuries to justify compensation.

Because it was not raised, the Panel did not address whether the claim for "litigation stress" was subject to the restrictions of the mental impairment statute, § 8-41-301(2)(a) through (d), C.R.S.2002, nor did it consider whether the current or previous version of the statute would apply. Because claimant did not prove any compensable worsening of condition, the Panel also did not consider whether the ALJ correctly had held that collateral estoppel precluded relitigation of the causation issue.

I.

Claimant contends the ALJ and the Panel erred in denying the petition to reopen because she sustained a compensable worsening of her condition. Specifically, she notes the ALJ found her depression worsened as a result of litigation stress, and she asserts that the law supports the compensability of litigation stress and depression under the circumstances of this case. We disagree.

Workers' compensation claims may be reopened because of a change in condition. Section 8-43-303(1), C.R.S.2002. A change in condition refers to a "change in the condition of the original compensable...