W.C. No. 4-292-298Industrial Claim Appeals Office.
April 28, 2004
ORDER OF REMAND
This matter is before us pursuant to the opinion of the Supreme Court in Davison v. Industrial Claim Appeals Office, 84 P.3d 1023 (Colo. 2004). We remand the matter to the Division of Administrative Hearings (DOAH) for further proceedings consistent with the court’s opinion.
On April 19, 2002, we entered an order reversing the ALJ’s award of mental impairment benefits under § 8-41-301(2)(a), C.R.S. 2003. The essence of our decision was that the claimant failed to prove the claim because she failed to produce the “testimony of a licensed physician or psychologist” to “support” findings that the alleged psychologically traumatic events were outside “a worker’s usual experience” and would evoke “significant symptoms of distress in a worker in similar circumstances.” The Court of Appeals affirmed our decision in Davison v. Industrial Claim Appeals Office, 72 P.3d 389 (Colo.App. 2003).
However, the Supreme Court ruled that a “claimant need not produce expert medical or psychological testimony regarding the second clause of the `mental impairment’ claim if it falls outside the expertise of the expert witness.” Instead, the claimant may prove through lay or other evidence that the “psychologically traumatic event is generally outside a worker’s usual experience and would evoke symptoms of distress in a similarly situated worker.” 84 P.3d at 1032.
Further, the Supreme Court stated that because its decision defined the standard for § 8-41-301(2)(a) for the first time, the case should be remanded for the claimant to have the “opportunity to present evidence in accordance with it.” Id. at 1033. Similarly, footnote 7 states that the case is remanded not only to allow the claimant “the opportunity to present new evidence in accordance with [the court’s] decision, but also so that the ALJ may evaluate the evidence already presented by” the claimant to prove the statutory elements. Id. at 1033.
IT IS THEREFORE ORDERED that the claim is remanded to the Division of Administrative Hearings for further proceedings consistent with the opinion of the Supreme Court.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this order were mailed to the parties at the addresses shown below on April 28, 2004 by A. Hurtado.
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)
Laurie Rottersman, Esq., Human Resources Section, 1525 Sherman St., 5th floor, Denver, CO 80203 (For Industrial Claim Appeals Office)