W.C. No. 4-222-307Industrial Claim Appeals Office.
December 7, 1995
ORDER OF REMAND
The respondent seeks review of a final order of Administrative Law Judge Erickson (ALJ) which determined that the claimant sustained a compensable injury and awarded medical and temporary disability benefits. We set the order aside and remand for entry of a new order.
The issue in this case is whether the ALJ correctly ruled that this case does not involve a “claim of mental impairment” within the meaning of § 8-41-301(2)(a), C.R.S. (1995 Cum. Supp.). In resolving the issue, the ALJ found that, on August 3, 1994, the respondent removed the claimant from his job as a mechanic because the respondent “mistakenly thought that [the] claimant had tested positive for alcohol.” The ALJ further found that the “stress of removal from this job caused the claimant to suffer from muscle spasms in his neck and shoulder.”
The ALJ rejected the respondent’s argument that § 8-41-301(2)(a) applies because the ALJ concluded that the “muscle spasms constitute a physical injury.” In so doing, the ALJ distinguished our prior decisions in Gaudett v. Stationers Distributing Co., W.C. No. 4-135-027, April 5, 1993, and Goodrich v. Pro-Eco, Inc., W.C. No. 4-130-045 and 4-189-755, November 30, 1994. The ALJ stated that the “factual circumstances of this case and the medical evidence” render those cases distinguishable.
On review, the respondent contends that the ALJ misinterpreted Gaudett v. Stationers Distributing Co., supra, and that this case involves a claim for “mental impairment” within the meaning of § 8-41-301(2)(a). The respondent reasons that this claim involves a “mental-physical” injury which falls within the purview of § 8-41-301(2)(a) as interpreted b Gaudett. We agree with the respondent.
Section 8-41-301(2)(a) states as follows:
“A claim of 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 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 stress in a worker in similar circumstances.” (Emphasis added.)
In Gaudett v. Stationers Distributing Co., supra, we were called upon to interpret the phrase “when the accidental injury involves no physical injury.” In that cas , the ALJ found that the claimant was harassed by a co-employee, and in one incident the claimant suffered a bruise to her leg. Ultimately, the claimant left work alleging that the psychological impact of the harassment rendered her unable to work. However, the ALJ denied the claim because he found that the claim was one for “mental impairment,” and that the claimant failed to prove the harassment would have evoked symptoms of distress in a worker in similar circumstances.
On appeal, the claimant argued that the ALJ’s ruling was incorrect because the physical touching and leg bruise constituted “physical injuries” sufficient to remove the claim from § 8-41-301(2)(a). However, we affirmed the ALJ, and relied on Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992) for the proposition that the “no physical injury” language of § 8-41-301(2)(a) constitutes an effort by the General Assembly to distinguish between the types of stress claims which are likely to be “frivolous and unnecessary and those that are not.” Gaudett also states that § 8-41-301(2)(a) accomplishes this objective by differentiating “between cases where physical injury causes mental impairment, and cases involving so called `mental-mental and mental-physical’ claims.”
Gaudett reasons that “mental-mental and mental-physical” claims are less subject to direct proof, and are therefore more susceptible to frivolous and unnecessary claims, because the stimulus to the disability is emotional or psychological rather than physical. Thus, Gaudett holds that the term “physical injury” as used in § 8-41-301(2)(a) contemplates an “independently disabling injury to the claimant’s person, not merely a coincidental and non-disabling insult to the body.”
Subsequent to our decision in Gaudett, and other cases relying o Gaudett, the Court of Appeals issued its decision in Colorado AFL-CIO v. Donlon, ___ P.2d ___ (Colo.App. No. 93CA1118, 93CA1392, June 15, 1995). In Donlon, the court faced an equal protection challenge to § 8-41-301(2) on the ground that a “claimant suffering from a mental impairment that is unaccompanied by any physical injury and is not caused by a crime of violence is entitled to only twelve weeks’ permanent disability benefits.” The court concluded that the “physical injury” provision does not violate equal protection because the legislature could rationally conclude that the “non-physical cause or causes of mental impairments may be difficult to ascertain.” The following language is pertinent:
“Here, the General Assembly could have reasonably concluded that, if an employee has not suffered a physical injury on the job or has not been a victim of a crime of violence, it is less likely that the conditions of employment were the primary cause of that employee’s mental impairment. Indeed, this distinction between mental impairments caused in conjunction with a physical injury or while the individual is within a `zone of danger’ and those not resulting from such causes has long been recognized as a proper distinction to draw under the common law for the award of tort damages for mental suffering based on negligence.” (Emphasis added).
Thus, as the respondent correctly argues, it is our view that a claim for “mental impairment” under § 8-41-301(2)(a) includes cases where the stimulus to the disability is purely mental but is alleged to have caused “physical injury” to the claimant. This conclusion is buttressed by the court’s holding in Colorado AFL-CIO v. Donlon, which indicates that the “physical injury” requirement is designed to differentiate between claims where the claimant has suffered a physical injury on the job, and those cases where the claim is based on a less objective “non-physical cause.” Indeed, this case illustrates the problem of determining whether the claimant’s “physical injury,” namely muscle spasms, was actually caused by “stress” resulting from his work or was the natural and proximate result of his prior neck injury.
It follows that we agree with the respondent that the ALJ incorrectly determined that the claimant sustained a “physical injury” within the meaning of § 8-41-301(2)(a). Rather, the ALJ found that the stress of removal from the job “caused the claimant to suffer from muscle spasms.” Thus, this case falls within the “mental-physical” category, and therefore, within the purview of § 8-43-301(2)(a).
Admittedly, there are factual distinctions between our prior cases and the facts in this case. For instance, Gaudett is properly classified as a “mental-mental” case rather than a “mental-physical” case. However, as we have pointed out, that factual distinction does not alter the principles which govern this claim.
We have considered the claimant’s assertion that the respondent “waived” the right to have the ALJ consider the criteria set forth in §8-41-301(2)(a). However, in closing argument, counsel for the respondent expressly requested the ALJ to consider the criteria set forth in the mental impairment statute. Moreover, the ALJ referred to these criteria in his order. Thus, the statute was properly before the ALJ.
Finally, we have considered the respondent’s argument that, considering other criteria contained in the mental impairment statute, there is insufficient evidence to support an award of benefits. However, our review of the record indicates that there are disputed factual issues for resolution by the ALJ. Therefore, we remand the matter for entry of a new order which considers all of the criteria of the mental impairment statute.
IT IS THEREFORE ORDERED that the ALJ’s order, dated February 16, 1995, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed December 7, 1995 to the following parties:
Victor L. Pate, 3693 Locust, Denver, CO 80207
Regional Transportation District, 1600 Blake St., Denver, CO 80202
Shelley P. Dodge, Esq., 1763 Franklin St., Denver, CO 80218
(For the Claimant)
Rolf G. Asphaug, Esq., Deputy General Counsel, Regional Transportation District, 1600 Blake St., Denver, CO 80202-1399
(For the Respondent)
By: _______________________