W.C. No. 4-509-509Industrial Claim Appeals Office.
February 12, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed her claim for workers’ compensation benefits based on mental impairment. We affirm.
Section 8-41-301(2)(a), C.R.S. 2002, provides that:
“A claim for mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2), `mental impairment’ means a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of 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.”
The evidentiary requirements in § 8-41-301(2)(a) apply where the claimant alleges a mental disability caused by a mental stimulus Department of Labor and Employment v. Esser, 30 P.3d 189 (Colo. 2001) Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996). Further, the failure to prove any one of the statutory requirements in § 8-41-301(2)(a) is fatal to a claim of mental impairment. Davison v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0922, January 2, 2003).
The claimant alleged that mental impairment caused by her employment with the Diamond Shamrock aggravated her pre-existing post-traumatic stress disorder. The fully contested claim was heard by the ALJ in a hearing on January 25, 2002. In support of the claim, the claimant presented the testimony of Barbara E. Wetzel (Wetzel), a licensed marriage and family therapist.
The ALJ determined the claimant failed to present the testimony of a licenced physician or psychologist as required by § 8-41-301(2)(a). Therefore, the ALJ concluded the claimant failed to sustain her burden to prove compensable mental impairment, and dismissed the claim.
On review, the claimant contends the claim is supported by the opinions of the licensed psychiatrist who testified in support of her application for Social Security Disability Insurance benefits. Further, she contends Wetzel is an expert in the study of psychology, and therefore, Wetzel’s testimony is sufficient to support the claim even though she is not a licensed psychologist. Finally, the claimant contends her injury is supported by evidence that Diamond Shamrock knew she had an emotional disability at the time she was hired.
At the hearing before the ALJ, the claimant did not submit any report from a licensed psychiatrist. Furthermore, our review is limited to the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925
(Colo.App. 1995). Therefore, we may not consider the medical reports of Dr. Dubovsky and Dr. Shapiro, which are attached to the claimant’s Supplemental Brief in support of the petition to review. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935) (parties are expected to present all of their evidence at the appointed hearing).
Moreover, Wetzel admitted she is neither a licensed psychologist nor a licensed physician, and the claimant’s testimony is legally insufficient to substitute for the evidence required by § 8-41-301(2)(a). (see Tr. p. 50). Consequently, the ALJ record supports the ALJ’s finding that the claimant failed to sustain her burden to prove compensable mental impairment under § 8-41-301(2). Whether the employer was aware of a pre-existing emotional disability is irrelevant to the statutory requirements which are the claimant’s burden to satisfy. Therefore, the ALJ did not err in denying the claim for workers’ compensation benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 31, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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Kathy E. Dean
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Dona Halsey
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. 2002. 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 _________ February 12, 2003 __________to the following parties:
Marjorie A. Creamer, 3717 S. Taft Hill Rd., #77, Ft. Collins, CO 80526
Ultramar Diamond Shamrock Corp., c/o Jody Holman, Corporate Claims Management, Inc., P.O. Box 696000, San Antonio, TX 78269
Timothy Nemechek, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: __________A. Hurtado__________