Opinion
W.C. No. 4-323-685
January 6, 1999
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied and dismissed her claim of mental impairment as defined in § 8-41-301(2), C.R.S. 1998. We affirm.
The claimant alleged that she suffered work-related stress from her job as a correctional officer, and that the stress resulted in blood pressure problems. The respondents denied liability.
Section 8-41-301(2)(a), C.R.S. 1998, requires that a claim for mental impairment be supported by the presentation of oral testimony from a licensed physician or psychologist. The ALJ found that the claimant failed to present the evidence required by § 8-41-301(2)(a). Therefore, the ALJ determined that the claimant failed to sustain her burden to prove a claim of compensable mental impairment.
On review, the claimant contends that the claim is not subject to the requirements of § 8-41-301(2)(a) because she suffered a physical injury. We disagree.
In Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996), the court concluded that where the injury is the result of emotional and physical components, the claim is not subject to the evidentiary requirements in § 8-41-301(2). Consequently, the court held that § 8-41-301(2) is applicable to claims where the sole cause of the injury is an emotional stimulus.
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. Therefore, we held that a claim for benefits based upon symptoms of depression, nausea and diarrhea from work-related stress is subject to the requirements of § 8-41-301(2)(a). In reaching this conclusion we noted that § 8-41-301(2) focuses on the cause or "stimulus" of the injury and not the result.
We are not persuaded to depart from our conclusions in DuShane. See also Burnham v. Frederick Kleinbub d/b/a Penn House Apartments, W.C. No. 4-226-336 (August 15, 1996) [claim for work-related stress resulting in ulcers governed by § 8-41-301(2)]. Therefore, the ALJ did not err in requiring the claimant to comply with the requirements of § 8-41-301(2). Furthermore, the ALJ's finding that the claimant failed to present the proof required by § 8-41-301(2)(a) supports the conclusion that the claimant failed to prove compensable mental stress.
The claimant also contends that § 8-41-301(2) violates constitutional guarantees to equal protection. However, we lack authority to consider the claimant's constitutional challenge of the statute. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Consequently, the claimant has not presented grounds which afford us a basis to interfere with the ALJ's order. Section 8-43-301(8), C.R.S. 1998.
IT IS THEREFORE ORDERED that the ALJ's order dated July 28, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean ____________________________________ Robert M. Socolofsky
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. 1998.
Copies of this decision were mailed January 6, 1999 to the following parties:
Florence Esser, P.O. Box 835, Olathe, CO 81425
Canon City Correctional Facility, P.O. Box 1010, Canon City, CO 81215-1010
Colorado Department of Corrections, Major Steven Green, Delta Correctional Center, 1140 G 1025 Lane, Delta, CO 81416
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq., (Interagency Mail)
Paul D. Feld, Esq., Ritsema Lyon, P.C., 999 18th Street, Suite 3100, Denver, CO 80202 (For Respondents)
BY: ____________