W.C. No. 4-292-298Industrial Claim Appeals Office.
October 12, 2001
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Coughlin (ALJ) which awarded death benefits to the decedent’s spouse (claimant). The respondents contend the ALJ applied an incorrect standard of law in determining that the decedent suffered from compensable stress which led to his suicide. Specifically, the respondents argue the claimant was required to prove that the “traumatic event” would have produced significant symptoms of distress in a worker performing duties similar to those of the decedent. We set the order aside and remand for the entry of a new order.
This matter was before us previously. Our Order of Remand dated May 18, 2000, contains a statement of the facts. That statement is incorporated herein.
On remand, the ALJ credited evidence the decedent suffered stress for four to five years prior to his suicide on April 16, 1996. Crediting the opinions of the claimant’s expert, the ALJ found the decedent’s job as a police captain subjected him to “the substantial stress of dealing with multiple personnel problems.” These problems included an officer who engaged in “inappropriate conduct” with a 17 year old high school girl. The ALJ also found the decedent’s depression substantially worsened in the spring of 1996 when several officers were found to have engaged in improper conduct during a prostitution sting operation.
The ALJ concluded the decedent experienced compensable stress as defined by former § 8-41-301(2)(a), C.R.S. 1996 [amended for injuries on or after July 1, 1999]. In so doing, the ALJ found the decedent’s experiences in handling personnel problems “were psychologically traumatic events that are generally outside of an ordinary worker’s
experience and would evoke significant symptoms of distress in a worker in similar circumstances.” (Emphasis added) (Finding of Fact 40). The ALJ also found the job pressures “experienced by the captain were unique, outside a worker’s usual experience, and would evoke significant symptoms of distress in a worker in similar circumstances.” (Finding of Fact 43 (e)).
On review, the respondents contend, inter alia, the ALJ applied an incorrect standard of law because “the stresses which allegedly contributed to the causation of the deceased’s depression were not outside of the objective worker’s experiences as specifically measured through a police captain’s usual experiences.” Hence, the respondents argue the experiences of an “ordinary worker” are not relevant. The claimant responds that § 8-41-301(2) does not require that the “stresses the employee is subjected to be out of the ordinary for that specific occupation,” only than a “reasonable worker” would experience significant symptoms of distress. We agree with the respondents.
Section 8-41-301(2)(a) provides that a claim for mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. Further, the statute defines “mental impairment” as disability resulting from an accidental injury involving no physical injury, and which “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.”
In interpreting this statute, we apply the ordinary rules of statutory construction. The primary objective is to effect the legislative intent. Because the best indicator of legislative intent is the language of the statute itself, we afford the words their plain and ordinary meanings so long as the result is not absur . See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Insofar as the statute is ambiguous, we should construe the entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all of its parts. Further, we may consider the legislative history. See Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
We have previously interpreted § 8-41-301(2)(a) as establishing two distinct requirements. First, we have held the requirement of a “psychologically traumatic event” outside of “a worker’s usual experience,” refers to a traumatic event outside the claimant’s (or decedent’s) usual experience. See Pilkington v. Community College of Aurora, W.C. No. 4-386-411 (June 6, 2000); Replogle v. City of Thornton,
W.C. No. 4-122-999 (February 3, 1993). Second, we have held the question of whether a traumatic event would evoke significant symptoms of distress in a worker in “similar circumstances” is a question of fact to be judged on the objective standard of a “reasonable worker.” Azu v. Vencor Hospital, W.C. No. 4-265-994 (August 18, 1997); Brown v. Family Inn of Colorado Springs, W.C. No. 4-271-351 (November 12, 1996). These interpretations of the statute have been based on legislative history indicating that the statutory objective is to enhance the proof requirements in “mental-mental” claims where evidence of causation is less subject to direct proof than in cases where the psychological consequence follows a physical injury. See Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996); Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992).
We have also held the phrase “a worker’s usual experience” refers to the claimant rather than the working population at large because the diversity of occupations renders it practically impossible to determine or distill the “usual experience” of the entire workforce. Consequently, it would frequently be impractical to determine whether an alleged “traumatic event” was outside the “usual experience” of the workforce. Similarly, it may be assumed that individual claimants possess or develop varying tolerances for stress based on the nature of their employment. For example, it may be within a physician’s usual experience to observe death, but not within the usual experience of an office worker. In our view, the General Assembly recognized this distinction by placing a limitation on proof of stress claims which is cognizant of the claimant’s particular occupation.
So far as we can ascertain, we have not specifically determined whether the portion of the test concerning the propensity of the traumatic event to “evoke significant symptoms of distress in a worker in similar circumstances” contemplates a worker who occupies a position similar to the claimant, or merely a “reasonable worker” in the workforce at large. (Emphasis added). We now conclude the former rather than the latter interpretation is most consistent with the statutory objective.
As we have previously held, the purpose of the “worker in similar circumstances” provision is to enhance the burden of proving causation by preventing a claimant from proving a stress claim by showing “idiosyncratic responses to a non-stressful, or mildly stressful occurrence which would not produce significant distress in a reasonable worker.” Brown v. Family Inn of Colorado Springs, supra. As with the first part of the test, if the “reasonable worker” is defined by the workforce at large, the effectiveness of the test is diluted. This is true because it may reasonably be expected that members of the workforce at large will exhibit “significant symptoms of distress” in certain situations which would not elicit similar symptoms among trained workers familiar with specific situations. Again, witnessing certain types of death may not cause “significant symptoms of distress” among physicians, but would cause such symptoms in the workforce at large.
Further, the statutory language itself lends support to this conclusion. In our view, the phrase “a worker in similar circumstances” contemplates a worker whose experiences, training, and duties are similar to those of the claimant. Indeed, it would appear contrary to the plain language of the statute to conclude that the phrase “similar circumstances” ignores circumstances, such as training and experience, which are among the most relevant in determining whether a particular event would evoke symptoms of distress in a “reasonable worker.”
Consequently, we conclude the ALJ misapplied the law in determining that the decedent suffered from compensable stress. The standard is not whether an “ordinary worker” would have found the allegedly traumatic events to be “unusual.” Rather, the question is whether the allegedly traumatic events were beyond the decedent’s usual experiences as a police captain. Further, if the ALJ finds the allegedly stressful events were beyond the decedent’s usual experiences, she must determine whether a “reasonable worker” performing work similar to that of the decedent would have experienced “significant symptoms of distress” when confronting the allegedly traumatic events. Further, the ALJ must determine whether these elements of proof are supported by the testimony of a licensed physician or psychologist. Brown v. Family Inn of Colorado Springs, supra.
In light of this conclusion, we need not reach the other arguments raised by the respondents.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 15, 2001, is set aside, and the matter is remanded for 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 October 12, 2001 to the following parties:
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., Bldg. 6, #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)
BY: A. Pendroy