W.C. No. 4-265-994Industrial Claim Appeals Office.
August 18, 1997
ORDER OF REMAND
The respondents seek review of a final order of Chief Administrative Law Judge Felter (ALJ), which awarded the claimant medical and permanent partial disability benefits based on a claim for mental impairment. We set the order aside and remand for further proceedings and entry of a new order.
The ALJ found that the claimant sustained compensable mental impairment as a result of an incident which occurred on August 11, 1995. On that date, the claimant’s supervisor decided to discipline the claimant because the claimant allowed overtime work during the supervisor’s vacation. The supervisor then “yelled” at the claimant for a “protracted period of time,” even after the claimant left the room where the discussion began. The ALJ further concluded that the claimant sustained a “general anxiety disorder, mild in nature,” as a result of this incident.
The ALJ found that the award was supported by the testimony of the claimant’s treating psychiatrist, Dr. Richter. It is significant that the claimant submitted into evidence Dr. Richter’s written reports of July 11, 1996, and October 6, 1995. Both of these reports state that the claimant is suffering an anxiety disorder as a result of the dispute with the supervisor. At hearing, claimant’s counsel sought further testimony from Dr. Richter concerning the causal relationship between the dispute and the claimant’s condition. However, the ALJ appears to have sustained an objection to this testimony on the grounds that Dr. Richter’s reports already contained evidence of the “causal connection” between the incident and the anxiety disorder. (Tr. p. 56).
Ultimately, the ALJ concluded that the claimant had proven a claim for mental impairment within the meaning of §8-41-301(2)(a), C.R.S. (1996 Cum. Supp.). In particular, the ALJ found that the supervisor’s conduct in yelling at the claimant did not constitute the imposition of discipline, but instead constituted a “psychologically traumatic event” under the statute. Moreover, the ALJ determined that the claimant had proven his claim “by a preponderance of the evidence, supported by the testimony of one or more licensed psychologists and/or psychiatrists.”
On review, the respondents argue, inter alia, that the record contains no evidence to support the ALJ’s implicit conclusion that the conflict between the claimant and his supervisor would have been sufficient to “evoke significant symptoms of distress in a worker in similar circumstances.” Moreover, the respondents argue that even if the record contains some evidence on this issue, the order is not supported by the “testimony of a licensed physician or psychologist.” Under the circumstances, we conclude that the matter must be remanded for a further hearing and entry of a new order on this issue.
Section 8-41-301(2)(a) provides that claims for mental impairment “must be proven by evidence supported by the testimony of a licensed physician or psychologist.” The statute goes on to define mental impairment as 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.”
In a series of cases, we have held that the requirement of testimony by a licensed physician or psychologist applies to the requirements that the traumatic event be outside the worker’s usual experience, and that the event would evoke significant symptoms of distress in a worker in similar circumstances. See Brown v. Family Inn of Colorado Springs, W.C. No. 4-271-352
(November 12, 1996); Martinez v. Department of Corrections,
W.C. No. 4-202-359 (July 2, 1996); Stephens v. Carlin Dodge,
W.C. No. 4-145-330 (May 18, 1995), aff’d., Stephens v. Carlin Dodge, (Colo.App. No. 96CA0273, August 15, 1996) (not selected for publication). We have also held that the question of whether the traumatic event would “evoke significant symptoms of distress” in a worker in “similar circumstances” is a question of fact to be judged on an objective standard. In other words, the finding which must be supported by psychiatric testimony is that a “reasonable worker” would have experienced significant symptoms of distress. We reached this conclusion because this interpretation of the statute “serves the legislative purpose of weeding out frivolous claims predicated on alleged idiosyncratic responses to non-stressful, or mildly stressful, occurrences which would not have produced significant distress in a reasonable worker.” Brown v. Family Inn of Colorado Springs, supra; Gaudett v. Stationers Distributing Co.,
W.C. No. 4-135-027 (April 5, 1993).
More recently, we have concluded that the statutory requirement for “testimony” of a licensed physician or psychologist requires actual testimony under oath. We held that this conclusion is consistent with the plain and ordinary meaning of the word “testimony,” and serves the legislative purpose of § 8-41-301(2)(a), which is to reduce costs associated with frivolous claims for mental impairment. We observed that a requirement for medical testimony under oath enhances the quality of evidence necessary to prove the elements of mental impairment claims when compared to ordinary claims, and subjects such testimony to cross-examination. Hungerford-Courtaway v. Eagle Picher Industries, Inc., W.C. No. 4-257-897 (February 14, 1997).
Here, the respondents are technically correct in stating that the claimant failed to present psychiatric “testimony,” as we have defined it, concerning whether or not the incident between the claimant and his supervisor would have produced “significant symptoms of distress” in a reasonable worker in similar circumstances. Although Dr. Richter adopted his written reports during the course of his testimony, neither of these reports specifically addresses this aspect of the statutory standard.
However, we conclude that it would amount to a denial of due process simply to reverse the award of benefits. We reach this conclusion because reversal of the award of benefits does not afford the claimant a full and fair opportunity to present evidence in his behalf. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
Here, the ALJ’s order was issued on December 18, 1996, prior to our decision in Hungerford-Courtaway v. Eagle Picher Industries, Inc. Consequently, the ALJ could not have known that we would interpret § 8-41-301(2)(a) to require actual testimony under oath by a licensed physician or psychologist, and that written reports would be insufficient to support an award. Moreover, the ALJ’s rulings on objections concerning Dr. Richter’s testimony may have conveyed the notion to the claimant’s attorney that the ALJ believed that Dr. Richter’s reports were sufficient to establish the claim for benefits, and that oral testimony would be excluded as merely duplicative of the reports.
The latter point is particularly significant since the claimant submitted the written report of his psychologist, Dr. Culpepper. In that report, Dr. Culpepper stated that, “within the course of human experience, the prolonged yelling at a worker by a supervisor would understandably result in the worker experiencing situational anxiety resulting in distress and mental pain.” This statement could be read as supporting an inference that any reasonable worker would have experienced significant symptoms of distress in the circumstances experienced by the claimant. Therefore, the claimant’s counsel may have been discouraged from asking Dr. Richter about this issue.
Under these circumstances, we consider it appropriate to set aside the ALJ’s order, and remand the matter so that the claimant may have an opportunity to present the testimony of a licensed physician or psychologist concerning whether the psychologically traumatic event was “generally outside of a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.” The ALJ shall afford the claimant this opportunity, and grant the respondents an opportunity to rebut this evidence if they so desire. Then, the ALJ shall enter a new order resolving the pertinent issues.
We recognize that the respondents raised other arguments concerning the sufficiency of the evidence to support the ALJ’s order, as well as the legality of the order. However, we need not reach these issues in view of our conclusions here.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 18, 1996, is set aside, and the matter is remanded for further proceedings and the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed August 18, 1997 to the following parties:
Ngozi Ike Azu, 15671 E. Custer Pl., Aurora, CO 80017
Vencor Hospital, 1920 High St., Denver, CO 80218-1213
Dean Maniscalco, Sentry Insurance, P.O. Box 29466, Phoenix, AZ 80538-9466
Patrick A. Egbune, Esq., 2323 S. Troy, Ste. 5-210, Aurora, CO 80014 (For the Claimant)
Ted Krumreich, Esq., 1225 17th St., 28th Flr., Denver, CO 80202-5528 (For the Respondents)
By: _______________________________