Opinion
W.C. No. 4-292-298
April 19, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) which awarded death benefits to the claimant based on the death of her husband, David Allan Davison (decedent). The respondents argue the record lacks sufficient evidence to support the ALJ's finding the decedent's suicide was the result of compensable "mental impairment" under former § 8-41-301(2)(a), C.R.S. 1996 [amended for injuries on or after July 1, 1999]. The respondents further contend death benefits are not available for suicides resulting from mental impairment. We reverse the ALJ's order.
Our first Order of Remand, dated May 18, 2000, contains an outline of the facts. That statement is incorporated herein. In our second Order of Remand, dated October 12, 2001, we held that § 8-41-301(2)(a) establishes distinct elements for proof of compensable mental impairment. First, the claimant must prove a "psychologically traumatic event" outside of "a worker's usual experience," which we defined to mean an event outside the claimant's usual experience. Second, the claimant must prove the traumatic event would "evoke significant symptoms of distress in a worker in similar circumstances." We interpreted this phrase to mean the claimant must prove that a reasonable worker "whose experiences, training, and duties are similar to those of the claimant" would experience "significant symptoms of distress" if confronted by the traumatic event experienced by the claimant. Consequently, our second Order of Remand directed the ALJ to determine whether the allegedly traumatic events were beyond the decedent's usual experiences as a police captain, and whether a reasonable police captain performing work similar to that of the decedent would have experienced "significant symptoms of distress" in circumstances similar to those confronted by the decedent. Finally, we directed the ALJ to "determine whether these elements of proof are supported by the testimony of a licensed physician or psychologist." (Order of Remand, October 12, 2001 at p. 4).
In an order dated December 20, 2001, the ALJ found the claimant proved the decedent's suicide was caused by compensable mental impairment within the meaning of § 8-41-301(2). The ALJ found the decedent experienced emotional stresses which commenced approximately "four to five years" before his suicide on April 16, 1996. The stresses included an "extraordinary" workload evidenced by the fact that following the decedent's death the police department created three divisions to handle the work previously managed by two divisions. Further, the ALJ found the decedent was required to deal with "unique" personnel problems which were "extraordinary because they became an embarrassing matter of public interest." One such problem involved an officer who became involved with a high school girl. Another case, which came to light shortly before the decedent's suicide, concerned improper sexual conduct by officers involved in a prostitution sting operation. The ALJ specifically stated this case does not involve "an idiosyncratic response to a non-stressful or mildly stressful occurrence easily tolerated by others similarly situated." (See Findings of Fact 40 to 42, 45(e); Conclusion of Law 3).
In support of these conclusions, the ALJ credited the testimony of the claimant's psychiatric expert, Dr. Miller. Specifically, the ALJ credited Dr. Miller's opinion that the decedent's stress commenced four to five years before death and was associated with the stresses of his employment. (Findings of Fact 30, 37).
On review, the respondents argue, inter alia, the testimony of Dr. Miller is not sufficient to support the allegation that the allegedly traumatic events experienced by the decedent were sufficient to cause significant symptoms of distress in a worker in similar circumstances. Rather, the respondents assert Dr. Miller merely opined the claimant's unique personality caused him to react unfavorably to the pressures of the job, not that the pressures would have evoked significant symptoms of distress in a similarly situated worker. (Respondents' Brief at p. 6). We agree with the respondents.
The first sentence of § 8-41-301(2)(a) states that a "claim for mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist." In Department of Labor and Employment v. Esser, 30 P.3d 189 (Colo. 2001), the court held that "testimony" of a licensed physician or psychologist may "include letters, reports, affidavits, depositions, documents, and/or oral testimony." However, the court also stated the "intent of the provision is that an impairment claim must be supported by the licensed physician's or psychologist's own words, in addition to whatever other evidence the claimant presents on behalf of the claim." Id. at 196. The court also stated that whatever form the physician's or psychologist's "testimony" takes, "it is not sufficient for the claimant to paraphrase or testify to what the licensed professional said or did with respect to his or her condition." Id. at 197.
As noted, the second sentence of § 8-41-301(2)(a) defines a "mental impairment" as an accidental injury "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." Because the definition of mental impairment follows the requirement for support by "testimony" of a licensed physician or psychologist, we have previously held that such professional testimony must specifically support findings that the claimant experienced a "traumatic event" which is outside the claimant's usual experience, and would evoke significant symptoms of distress in a worker in similar circumstances. See Mobley v. King Soopers, W.C. No. 4-359-644 (March 18, 2002); Brown v. Family Inn of Colorado Springs, W.C. No. 4-271-352 (November 12, 1996). The obvious purpose of the requirement for professional testimony is to enhance the quality of proof required in mental impairment cases because mental-mental injuries are less subject to direct proof than mental impairment which results from a preceding physical injury. See Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996); Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992); cf. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983) (medical evidence need not be presented on the issue of causation where the claimant alleges a physical injury). The question of whether the evidence meets the threshold requirement for supporting "testimony" by a licensed professional is distinct from, and should not be confused with, the ultimate questions of whether the claimant proved the traumatic event was outside the claimant's usual experience and would "evoke significant symptoms of distress in a worker in similar circumstances." Thus, if the claimant presents professional testimony to support the claim, the ALJ must also determine whether, as a matter of fact, the evidence is sufficient to meet the claimant's burden of proof. See Martinez v. Department of Corrections, W.C. No. 4-202-359 (July 2, 1996).
In reviewing the ALJ's order, we must uphold the ALJ's pertinent findings of fact if supported by substantial evidence, including plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2001. However, where reasonable minds can draw only one inference, the question is one of law which we may determine independent of the ALJ's conclusion. Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
We have carefully reviewed the testimony of Dr. Miller, the psychiatrist who testified on behalf of the claimant. Clearly, Dr. Miller opined the decedent experienced depression, and ultimately committed suicide, as a result of psychological pressures which he experienced at work during a four to five year period. (Tr. pp. 88, 89, 91, 93, 94, 110). However, we are unable to locate any portion of Dr. Miller's testimony in which he opined the events experienced by the decedent were likely to "evoke significant symptoms of distress in a worker in similar circumstances." Neither are we able to locate any portion of the testimony which would justify an inference that Dr. Miller believed the job pressures were sufficient to cause "significant symptoms of distress" in a reasonable worker with training and experience similar to that of the claimant. Indeed, as the respondents argue, Dr. Miller testified that it was the decedent's individual character traits and personal psychological vulnerability to stress which caused him to "wear down" over time. The following testimony of Dr. Miller is pertinent:
"It started several years before any of those events. It has the kind of time course one would expect in a situation where pressures of any kind have gradually begun to wear somebody down and just gets worse and worse until finally they can't bear it any longer. And that's very consistent with the kinds of pressures that a job with increased responsibilities, increased administrative duties in a growing police force would be expected to have on such a person, if he had a serious inability for that, and paradoxically the very things that made him such an outstanding administrator, a police officer — his attention to detail, his hard working — made it more difficult for him to withstand the pressures that were building up that were job-related." (Tr. October 2, 1998, p. 91) (Emphasis added).
It is true, as the claimant argues, that Chief Wagoner testified that some of the pressures confronted by the decedent, including the problems posed by the prostitution sting operation, were also stressful to the chief. (Tr. October 2, 1998, pp. 18, 13). However, the testimony of the chief of police does not constitute testimony by a licensed physician or psychologist which would satisfy the threshold requirement of the statute. Department of Labor and Employment v. Esser, supra; Martinez v. Department of Corrections, supra (testimony of social worker not sufficient to support claim for mental impairment).
Under these circumstances, we conclude the evidence is insufficient to support the award of benefits because there is no "testimony" of a licensed physician or psychologist to support a finding that the decedent experienced a "traumatic event" which would "evoke significant symptoms of distress in a worker in similar circumstances." Consequently, the ALJ's order must be reversed. In light of this conclusion we need not consider the respondents' remaining arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated December 20, 2001, is reversed, and the claim for death benefits is denied and dismissed.
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 19, 2002 to the following parties:
Lana Lea Davison, 2479 Amber Dr., Loveland, CO 80537
City of Loveland Police Department, City of Loveland, 500 E. 3rd St., Loveland, CO 80537
Judy Montoya, CIRSA, 3665 Cherry Creek Drive North, Denver, CO 80209
Jan A. Larsen, Esq., Shores Office Park 375 E. Horsetooth Rd., Building 6, Suite 200, Ft. Collins, CO 80525 (For Claimant)
Anne Smith Myers, Esq. and Benjamin E. Tracy, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
By: A. Hurtado