W.C. No. 4-393-352Industrial Claim Appeals Office.
February 25, 2000
ORDER OF REMAND
The claimant seeks review of an order of former Administrative Law Judge Gandy (ALJ) which denied and dismissed her claim for workers’ compensation benefits based on mental impairment. We set aside the order and remand the matter for further proceedings.
The claimant alleged that she suffered a work-related injury in January 1998 due to mental impairment. A hearing was scheduled for August 12, 1999. At the conclusion of the claimant’s presentation of evidence, the respondent moved for a directed verdict based on the claimant’s failure to present deposition or “live testimony” from a licensed physician or psychologist. The ALJ adjourned the hearing and took the motion under advisement. On August 30, 1999, the ALJ issued a Summary Order granting the respondent’s motion for a directed verdict. The ALJ agreed with the respondent that under former § 8-41-301(2)(a), C.R.S. 1998 [amended in 1999 for injuries occurring on or after July 1, 1999], the claimant’s failure to present deposition or live testimony from a licensed physician or psychologist was fatal to her claim for mental impairment benefits. Therefore, the ALJ denied and dismissed the claim. Specific Findings of Fact were issued on September 9, 1999. The claimant timely appealed that order.
On review the claimant contends, inter alia, that the ALJ erroneously required her to present deposition or live testimony from a licensed physician or psychologist. We agree.
Section 8-41-301(2)(a) provides: “A claim of mental impairment must be proven by evidence supported by the testimony
of a licensed physician or psychologist.” (Emphasis added). We have previously issued decisions in which we concluded that §8-41-301(2)(a) requires that a claim for mental impairment be proven by oral evidence from a licensed physician or psychologist testifying under oath at the hearing or by deposition. Esser v. Colorado Department of Corrections, W.C. No. 4-323-685 (January 6, 1999); Bruce v. Moffat County Youth Center, W.C. No. 4-311-204 (March 23, 1998); Azu v. Vencor Hospital, W.C. No. 4-265-994 (August 18, 1997); Hungerford-Courtaway v. Eagle Picher Industries, Inc., W.C. No. 4-257-897 (February 14, 1997).
The Court of Appeals implicitly adopted our position in an unpublished opinion, Bruce v. Moffat County Youth Center
(Colo.App. No. 98CA0720, December 24, 1998). However, in Esser v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0106, January 20, 2000) the Court of Appeals held that §8-41-301(2)(a) was unconstitutional because it violates equal protection of the law insofar as it requires a claim of mental impairment to be proven by live expert testimony. Under facts almost identical to the circumstances presented here, the Esser
court set aside an order dismissing the claim for mental impairment benefits and remanded the matter with directions to reconsider the claim without requiring the claimant to present live testimony from a physician or psychologist.
The published opinion of the Court of Appeals must be followed in this case. Consequently, the ALJ’s order dismissing the claim is set aside, and the matter is remanded for further evidentiary proceedings and resolution of the claimant’s claim for benefits, without requiring the presentation of live testimony from a physician or psychologist.
In view of this disposition, the claimant’s remaining arguments are moot.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 9, 1999 is set aside, and the matter is remanded to the Division of Administrative Hearings for further proceedings on the claim for mental impairment benefits.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Bill Whitacre
Copies of this decision were mailed February 25, 2000
to the following parties:
Dorothy Barrett-Taylor, 1849 S. Salida Circle, Aurora, CO 80017 Kaiser Permanente, Attn: Mary Connelly, 2500 S. Havana St., Aurora, CO 80014
Kurt Muehler, RSKCo, P.O. Box 5307, Denver, CO 80217-5307 Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For Claimant)
Fred Ritsema, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: L. Epperson