From Casetext: Smarter Legal Research

In re Bruce, W.C. No

Industrial Claim Appeals Office
Mar 23, 1998
W.C. No. 4-311-203 (Colo. Ind. App. Mar. 23, 1998)

Opinion

W.C. No. 4-311-203

March 23, 1998


FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed her claim for mental impairment benefits under § 8-41-301(2), C.R.S. 1997. We affirm.

Insofar as pertinent subsection 8-41-301(2)(a) provides that:

"A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist."

In Hungerford-Courtaway v. Eagle Picher Industries, Inc., W.C. No. 4-257-897 (February 14, 1997), we concluded that the ordinary meaning of the term "testimony" is unambiguous, and that it connotes oral evidence given under oath. Consequently, in Hungerford-Courtaway, we concluded that a written report from a licensed physician or psychologist is insufficient to sustain the proof required in § 8-41-301(2)(a).

Here, the claimant alleged that she sustained compensable mental impairment following a work-related incident on July 9, 1996. In support, the claimant relied upon the written reports of Dr. Entin.

After the claimant rested her case, the respondents moved for an order dismissing the claim on grounds that the claimant failed to present oral testimony from a licensed physician or psychologist as required by § 8-41-301(2)(a). In response, the claimant moved to reopen her case and requested leave to submit Dr. Entin's deposition.

The ALJ determined that the claimant failed to establish good cause for a continuance. Furthermore, the ALJ determined that the claimant's failure to present "testimony" from a licensed physician or psychologist was fatal to the claim for mental impairment benefits. Therefore, the ALJ denied and dismissed the claim.

I.

On review the claimant contends that the ALJ's "directed verdict" was an abuse of discretion. We disagree.

C.R.C.P. 41(b)(1) provides that, after a plaintiff in a civil action tried without a jury has completed the presentation of his evidence, the defendant may move for a dismissal on the grounds that the plaintiff has failed to present a prima facie case for relief. In determining whether to grant a motion to dismiss or directed verdict, the court is not required to view the evidence in the light most favorable to the plaintiff. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966); Blea v. Deluxe/Current, Inc., W.C. No. 3-940-062 (June 18, 1997) (applying these principles to workers' compensation proceedings). Rather, the test is whether judgment for the respondents is justified on the claimant's evidence. American National Bank v. First National Bank, 28 Colo. App. 486, 476 P.2d 304 (1970).

Here, the ALJ found Hungerford-Courtaway persuasive, and therefore, determined that § 8-41-301(2)(a) requires the claimant to present oral "testimony" from a licensed physician or psychologist to sustain a claim of compensable mental impairment. Furthermore, the failure to prove any one of the requirements of § 8-41-301(2) is fatal to a claim of mental impairment. Young v. Industrial Claim Appeals Office, 860 P.2d 591 (Colo.App. 1993). Accordingly, the undisputed fact that the claimant rested her case without presenting any oral testimony from a licensed physician or psychologist supports the conclusion that judgment for the respondents is justified on the claimant's evidence. Therefore, the ALJ did not err in entering a "directed verdict" for the respondents.

However, the claimant argues that Hungerford-Courtaway was wrongly decided. The claimant contends that the requirements of § 8-41-301(2)(a) were enacted by Senate Bill 91-218, and only require that a claim of mental impairment be supported by the "opinion" of a physician or psychologist. The claimant also contends that Hungerford-Courtaway is inconsistent with § 8-43-210 C.R.S. 1997, which allows medical opinions to be presented by written report.

As noted by the ALJ, the statutory requirement to present "testimony" from a licensed physician or psychologist was not enacted by Senate Bill 91-218. Rather, the requirement was enacted in 1986, when the General Assembly first established the statutory criteria for a claim by "reason of mental or emotional stress." See 1986 Colo. Sess. Laws, ch. 73, 521. Furthermore, the following language from Hungerford-Courtaway is instructive:

"The legislative purpose underlying § 8-41-301(2)(a) is to reduce costs associated with frivolous claims for mental impairment. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995); Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992). Considering this objective, the General Assembly might reasonably have concluded that proof of claims for mental impairment should be supported by medical experts testifying under oath. Such a requirement enhances the quality of evidence necessary to prove mental impairment claims when compared to cases of ordinary physical injuries where causation may be proven by documentary medical evidence, or no medical evidence at all. Section 8-43-210; [citation omitted]. Further, oral evidence is subject to cross-examination, and therefore, more likely to be tested by the opposing party."

Accordingly, we disagree with the claimant's contention that the requirement for oral testimony was not intended to impose an additional burden on the claimant.

Moreover, in Hungerford-Courtaway, we expressly rejected the argument that our construction of § 8-41-301(2)(a) is inconsistent with § 8-43-210. As stated in Hungerford-Courtaway, § 8-43-210 merely states that physicians' reports are "admissible" without "formal identification." The statute in no way purports to establish what type of evidence will be sufficient to prove any type of claim. See Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Thus, a consistent and harmonious reading of these statutes may be reached without creating the inherent conflict urged by claimant.

Furthermore, the Workers' Compensation Act contemplates a distinction between "testimony" and documentary evidence. For example, § 8-43-213, C.R.S. 1997 concerns the recording and transcribing of oral testimony. Section 8-43-213 requires that "all testimony and argument of all hearings" be recorded verbatim. If the terms "evidence" and "testimony" were synonymous, then § 8-43-213 would require that a physician's medical report be recorded "verbatim." However, it makes no sense to record "evidence" which is already in a written form. It follows that the term "testimony" logically refers to "oral evidence."

For all of these reasons, we are not persuaded to depart from our conclusions in Hungerford-Courtaway. Consequently, we adhere to our prior conclusion that a claim for mental impairment must be supported by oral evidence from a licensed physician or psychologist testifying under oath. See also Franz v. Arapahoe County Dept. of Social Services, W.C. No. 4-306-780, (September 8, 1997); Azu v. Vencor Hospital, W.C. No. 4-265-994, (August 18, 1997).

Nevertheless, the claimant contends that Hungerford-Courtaway is factually distinguishable because in that case the claimant failed to prove several other elements of a claim for mental impairment. In contrast, the claimant contends that she only failed to prove the "technical" requirement of "testimony" from a physician or psychologist. We are not persuaded.

Initially, we note that the ALJ made no findings of fact concerning whether the claimant proved any of the other statutory requirements for a claim of mental impairment. Nevertheless, as stated above, the failure to prove any one element is fatal to a claim for mental impairment. Thus, the pertinent facts are indistinguishable from the circumstances in Hungerford-Courtaway.

II.

Next, the claimant contends that the ALJ abused his discretion in failing to grant a continuance to submit the deposition testimony of Dr. Entin. The claimant contends that the continuance was warranted because her attorney was "surprised" that § 8-41-301(2)(a) requires the presentation of oral testimony. We perceive no abuse of discretion.

In the exercise of his discretion, an ALJ may continue a hearing to a later date upon a showing of "good cause," by the party seeking the continuance. Section 8-43-207(1) (j), C.R.S. 1997; Rules of Procedure Part VIII(J),7 Code Colo. Reg. 1101-3, at 27; Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). The standard on review of an alleged abuse of discretion is whether, under the totality of the circumstances, the ALJ's ruling exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). In applying this standard it is proper to consider whether the ALJ's order is supported by the record and the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).

In support of her request for a continuance, the claimant's attorney stated that she was unaware § 8-41-301(2)(a) required oral testimony from a physician or psychologist and also unaware of Hungerford-Courtaway. (Tr. May 20, 1997, pp. 86, 87). However, the ALJ determined these assertions were insufficient to establish good cause for a continuance because parties are expected to know the applicable statutes and law interpreting those statutes. See Paul v. Industrial Commission, 632 P.2d 638 (Colo.App. 1981).

We agree with the ALJ's statement of the law. Consequently, we cannot say that the ALJ abused his discretion in refusing to grant a continuance to allow the claimant additional time to prove the requirements of § 8-41-301(2)(a).

IT IS THEREFORE ORDERED that the ALJ's order dated June 18, 1997, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.

Copies of this decision were mailed March 23, 1998 to the following parties:

Lucy Bruce, 350 Bonderud Ave., Craig, CO 81625

Moffat County Youth Care Center, Attn: R. Henderson, 221 W. Victory Way, Craig, CO 81625

Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)

Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail

Glenn Goldman, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)

By: ________________________________


Summaries of

In re Bruce, W.C. No

Industrial Claim Appeals Office
Mar 23, 1998
W.C. No. 4-311-203 (Colo. Ind. App. Mar. 23, 1998)
Case details for

In re Bruce, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF LUCY BRUCE, Claimant, v. MOFFAT COUNTY YOUTH…

Court:Industrial Claim Appeals Office

Date published: Mar 23, 1998

Citations

W.C. No. 4-311-203 (Colo. Ind. App. Mar. 23, 1998)

Citing Cases

Mat. of Claim of Romero v. Tristar Drywall, W.C. No

Rather, the test is whether judgment for the respondents is justified on the claimant's evidence. American…

In re Witt, W.C. No

Rather, the test is whether judgment for the respondents is justified on the claimant's evidence. American…