W.C. No. 4-455-119.Industrial Claim Appeals Office.
June 5, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which determined the claimant was not the “victim of a crime of violence” within the meaning of § 8-41-301(2)(b), C.R.S. 2001, and therefore denied the claimant’s request for more than 12 weeks of medical impairment benefits. We affirm.
The claimant is a police officer. On March 4, 2000, the claimant was called to the scene of an individual experiencing a seizure. When the claimant arrived, the individual was agitated, combative, and yelling obscenities. Firefighters requested the claimant’s assistance in restraining the individual inside an ambulance. As the claimant attempted to handcuff the individual, the individual bit him in the hand. The claimant later experienced a severe emotional and psychological reaction because the individual had Hepatitis B and was HIV positive. The treating physician rated the claimant’s permanent mental impairment as 50 percent of the whole person.
The respondent admitted liability for the injury and paid temporary total disability benefits for at least 12 weeks. The respondents also filed a Final Admission of Liability for 50 percent mental impairment. However, relying on § 8-41-301(2)(b), the respondent paid no additional benefits for permanent mental impairment.
Section 8-41-301(2), C.R.S. 2001, sets forth the requirements for compensable mental impairment. Section 8-41-301(2)(b) limits claimants to 12 weeks of permanent medical disability benefits for mental impairment, inclusive of temporary disability benefits, except where the claimant was the “victim of a crime of violence” or suffered neurological brain damage as a result of the injury.
Relying on § 16-1-104(8.5)(a)(I), C.R.S. 2001, the ALJ found the term “crime of violence” refers to crimes of assault, and reckless endangerment which require proof of intent. The ALJ found the individual who bit the claimant suffered from a seizure disorder and after he received treatment he did not recall the events on March 4. Under these circumstances, the ALJ found the claimant failed to prove the individual acted with any conscious objective or intent to hurt the claimant and did not act knowingly or recklessly. Therefore, the ALJ determined the claimant failed to prove he was the victim of a “crime” of violence and concluded the claimant was subject to the 12-week limitation for medical impairment benefits.
On review, the claimant contends the ALJ erroneously relied on §16-1-104 to find that § 8-41-301(2)(b) required proof the biter intended to commit a crime. Rather, the claimant argues the term “crime of violence” merely requires proof he was the victim of a “wrongdoing or evil act.” We disagree.
Initially, we note that the claimant’s Designation of Record includes the “entire Division of Workers’ Compensation and Division of Administrative Hearing files.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
The issue on appeal involves a question of statutory construction. The rules of statutory construction require that we construe §8-41-301(2)(b) to further the legislative intent. City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995). To discern the intent we must give the words in the statute their plain and ordinary meanings. Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996). To the extent the words are ambiguous we may resort to extrinsic aids to construction that are probative of the General Assembly’s intent. Section 2-4-204, C.R.S. 2001. United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152 (Colo. 2000); City of Thornton v. Replogle supra. This includes consideration of the objective the General Assembly sought to obtain by its enactment, the circumstances under which it was adopted, and the consequences of a particular construction. Furthermore, we should construe the entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all of its parts. Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo 1998).
Section 8-41-301(2)(b) was first enacted by Senate Bill 91-218 (SB 218), in an effort to eliminate frivolous “stress” claims. See Oberle v. Industrial Claim Appeals Office, supra; 1991 Colo. Sess. Laws, Ch., 219, at 1294. SB 218 established a stricter standard for injuries resulting from an emotional stimulus based upon an assumption that psychological injuries are less subject to direct proof. Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992). SB 218 also established a 12-week limitation of permanent disability benefits for mental impairment. City of Thornton v. Replogle, supra. In 1999 the General Assembly expanded the scope of the statute to require that psychological disabilities resulting from physical injuries also establish the proof required by § 8-41-301(2). See 1999 Colo. Sess. Laws, Ch. 103 at 299.
However, nothing in § 8-41-301 or anywhere in the Workers’ Compensation Act (Act) defines the term “crime of violence.” Further there is no dictionary definition for the term “crime of violence.” Therefore, we conclude the term is ambiguous in the context of §8-41-301(2)(b).
The ALJ correctly observed that the Code of Criminal Procedure contains a definition of the term “crime of violence.” Section 16-1-104(8.5)(a)(I), which was first enacted in 1987 [Colo. Sess. Laws ch 125 at 657; amended by 1993 Colo. Sess. Laws Ch. 279 at 1632 in ways not pertinent to this claim] defines “crime of violence” to mean:
“a crime in which the defendant used, or possessed and threatened the use of, a deadly weapon during the commission or attempted commission of any crime, committed against an elderly or handicapped person or a crime of murder, first or second degree assault, kidnaping, sexual assault, robbery, first degree arson, first or second degree burglary, escape, or criminal extortion or during the immediate flight therefrom, or the defendant caused serious bodily injury or death to any person, other than himself or another participant, during the commission or attempted commission of any such felony or during the immediate flight therefrom.”
The General Assembly is presumed cognizant of existing statutes when it enacts new legislation. Cf. Rauschenberger v. Radetsky, 745 P.2d 640
(Colo. 1987). Because the General Assembly did not adopt a definition of “crime of violence” in 1991 when it enacted SB 218 and that express term was already defined in § 16-1-104(8.5)(a)(1), it may reasonably be inferred the General Assembly intended the definition in §16-1-104(8.5)(a)(1) is applicable to § 8-41-301(2)(b).
It follows that we reject the claimant’s contention the ALJ erroneously required him to prove the individual who bit him acted with criminal intent. Section 18-1-104(1), C.R.S. 2001, of the criminal code defines the term “crime” to mean “a violation or conduct defined by any state statute for which a fine or imprisonment may be imposed.” The ALJ correctly found that the “crime” of assault requires proof the attacker either acted intentionally or recklessly. As defined in § 18-1-501(5)2 C.R.S. 2001, a person acts with intent “when his conscious objective is to cause the specific result proscribed.” Under § 18-1-501(8), C.R.S. 2001, a person acts “recklessly” when he “consciously disregards a substantial and unjustifiable risk that a result will occur.”
Here, the record contains evidence that the individual who bit the claimant was suffering from a seizure disorder which prevented him from controlling his actions. Under these circumstances, the ALJ reasonably inferred the individual had no conscious intent to harm the claimant or disregard the risk that biting the claimant would cause an injury. The ALJ’s finding is buttressed by the fact no criminal charges were filed against the biter. Thus, the ALJ did not err in finding the claimant’s injuries were not the result of a “crime” of violence as required by § 8-41-301(2)(b).
The claimant’s remaining arguments have been considered and are not persuasive. Admittedly, “fault” is not relevant to the issue of compensability under the Act. However, it is the fault of the claimant and employer which are disregarded, not the fault of a third part aggressor where such evidence is relevant to proving the claimant’s entitlement to a particular benefit.
Moreover, the exception created by § 8-41-301(2)(b) reflects the legislature’s opinion that the permanent effects of psychological injuries which are the product of criminal acts may have more severe consequences than psychological injuries from non-criminal stressors. Even though the claimant’s job exposes him to the risk of bodily harm from violent acts which do not quality as “crimes,” the fact the legislature’s line drawing may be imperfect or cause inequities does not provide grounds for disregarding the limiting language of the statute Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 13, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 5, 2002 to the following parties:
Michael Bralish, 13102 Pennsylvania Circle, Thornton, CO 80241
Christine Schneider, City of Thornton, P. O. Box 291220, Thornton, CO 80229
Margaret Miller, City of Thornton Attorney’s Office, 9500 Civic Center Dr., Thornton, CO 80229
Toni Owens, Adjuster, Occupational Healthcare Management Services, P. O. Box 173682, Denver, CO 80217-3682
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Fred Ritsema, Esq. and Nancy C. Hummel, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Hurtado