W.C. No. 4-386-411Industrial Claim Appeals Office.
June 26, 2000
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) denying and dismissing a claim for mental impairment benefits. The claimant contends the ALJ erroneously applied the mental impairment statute because she did not allege an “accidental injury.” The claimant also argues that, contrary to the ALJ’s findings, she presented the testimony of a licensed physician which “supports” her claim. Finally, the claimant asserts the ALJ erred by failing to consider a written report of her treating physician. We affirm.
The claimant, a switchboard operator, alleged that her supervisor caused mental stress by conducting unreasonable and unjustified performance evaluations, and by unreasonably increasing her workload. The claimant also alleged that the mental stress aggravated her preexisting psoriasis.
In support of the claim, the claimant presented the written report and deposition testimony of her treating dermatologist, Dr. Fitzpatrick. In the report dated July 30, 1999, Dr. Fitzpatrick stated psoriasis can be aggravated by stress, that the claimant “reported that she was under significant stress,” and it was “medically probable” the claimant’s psoriasis was aggravated by stress. However, in a deposition, Dr. Fitzpatrick testified that he could not remember “particulars” of the claimant’s problems with the employer, did not know whether there was “a specific argument or specific incident, and could not state whether the claimant’s work-related stress was “unusual.” (Fitzpatrick Depo. pp. 14, 34).
The ALJ found Dr. Fitzpatrick’s testimony does not support a finding of a disability arising from the claimant’s employment, nor does it support the finding 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.” Thus, the ALJ dismissed the claim, concluding it was not “supported” by the testimony of a licensed physician or psychologist as required by § 8-41-301(2)(a), C.R.S. 1998 [amended with respect to injuries occurring on or after July 1, 1999].
I.
On review, the claimant first contends the ALJ erred in determining that § 8-41-301(2)(a) [mental impairment statute] applies to this claim. The claimant argues the statute applies only to a disability stemming from an “accidental injury.” The claimant asserts this claim does not involve an “accidental injury” because the alleged actions of her supervisor were deliberate, not accidental. We reject this argument.
Section 8-40-201(1), C.R.S. 1999, defines the term “accident.” The statute provides as follows:
“Accident” means an unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; or the effect of an unknown cause or, the cause, being known, an unprecedented consequence of it.
Prior to the enactment of § 8-40-201(1) and its predecessors, the term “accident” was judicially interpreted to mean “any unintended or unexpected loss or hurt apart from its cause.”Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348
(1965). Further, the term accident was broadly construed to encompass intentional torts committed by coemployees. Kandt v. Evans, 645 P.2d 1300 (Colo. 1982); Rendon v. United Airlines,
W.C. No. 3-969-472 (November 18, 1994). The rationale for these holdings was, at least in part, that willful or criminal acts of another are, from the victim’s point of view, “just as unexpected and unforeseeable as are industrial accidents.” Id. at 1303.
In our view, § 8-40-201(1) substantially incorporates the principles set forth in the case law prior to enactment of the statutory definition of an “accident.” Therefore, we decline to infer any legislative intent that the term “accident” requires the ALJ to focus on the intent or conduct of the actor to the exclusion of considering the effect of the conduct on the claimant. Applying these principles here, the alleged aggravation of the claimant’s psoriasis may be viewed as an “unforeseen event occurring without the will or design of” the claimant’s supervisor or the claimant. Further, aggravation of the psoriasis may be viewed as an “unprecedented consequence” of the supervisor’s alleged conduct. Put another way, although the supervisor’s actions may not have been “accidental,” the alleged effects on the claimant were accidental.
Moreover, the claimant’s proposed construction of the term “accident” is inconsistent with other provisions of the mental impairment statute. The statute provides that a claim for mental impairment does not arise out of and in the course of employment if it results from disciplinary action, work evaluation, or “similar action taken in good faith by the employer.” Thus, the statute clearly contemplates that deliberate conduct comes within the purview of the statute, but differentiates between good faith and bad faith actions of the employer. We should not construe the statute in a fashion which creates internal inconsistencies Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
II.
The claimant next contends the ALJ erred in concluding the claim was not “supported by the testimony of a licensed physician or psychologist.” Specifically, the claimant argues that, contrary to the ALJ’s ruling, the statute does not require the testimony of a licensed physician to support the findings that the injury “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.” We disagree.
When construing statutes the objective is to the effect the legislative intent. To that end, the words and phrases in the statute should be giving their plain and ordinary meanings. If there is any ambiguity, we may consider the state of the law prior to the legislative enactment, and the statutory remedy created to cure the problem. Further, we should construe the statute in a manner that gives consistent, harmonious, and sensible effect to all of its parts. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998); Henderson v. RSI, Inc., supra.
The purpose for enacting the mental impairment statute was to establish requirements of proof for compensability of stress-related claims in order to prevent frivolous and unnecessary claims. The statute accomplishes this objective by requiring verification of the “mental component” of the stress claim by a licensed physician or psychologist. Esser v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0106, January 20, 2000), Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App. 1992).
Because the statute defines a claim for “mental impairment” as one resulting from 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,” we have concluded that each of these elements must be “supported” by the testimony of a licensed physician or psychologist. Azu v. Vencor Hospital, W.C. No. 4-265-994 (August 18, 1997) (copy in record). In our view, an expert qualified to diagnose mental conditions is specially qualified to render an opinion concerning whether or not an alleged stressor constituted a psychologically traumatic event, fell outside the range of a worker’s “usual” experiences, and would likely have evoked symptoms of distress in a similarly situated worker. Each of these elements is relevant to the question of whether the alleged work-related stressor caused the claimant’s mental impairment. Consequently, a consistent and harmonious reading of the statute contemplates the claimant must present expert evidence in support of each element.
In her brief, the claimant concedes that an expert “would likely have an opinion” as to whether certain circumstances could be characterized as “psychologically traumatic.” However, she asserts that an expert has no particular qualifications to render an opinion concerning whether or not an event would be outside “the worker’s usual experience,” or whether “such events would evoke significant symptoms of distress in a worker in similar circumstances.” However, we believe a licensed physician or psychologist is fully qualified to examine the claimant’s history and render an opinion whether a particular event falls outside the range of the claimant’s usual psychological experiences. Further, an expert is qualified by knowledge and experience to render an opinion concerning whether or not a specific event is likely to produce symptoms of distress in a similarly situated worker. In this way, the requirement of supporting medical evidence guards against “frivolous claims predicated on alleged idiosyncratic responses to non-stressful, or mildly stressful, occurrences which would not have produced significant distress” in a worker in circumstances similar to those of the claimant. Azu v. Vencor Hospital, supra. The claimants’ assertion notwithstanding, the requirement of “support” by the opinion of a qualified expert in no way prohibits the claimant from offering relevant lay evidence which serves to corroborate the expert’s opinions.
It follows the ALJ correctly applied the law in this case. As the ALJ found, Dr. Fitzpatrick admitted having virtually no knowledge of the specific incidents which allegedly caused the claimant’s work-related stress. Consequently, Dr. Fitzpatrick rendered no opinion that the allegedly stressful events were psychologically traumatic, were outside the claimant’s usual experience, or would have caused distress in a similarly situated worker.
III.
Finally, the claimant argues the ALJ failed to consider Dr. Fitzpatrick’s July 30 medical report. The claimant notes the ALJ entered his order prior to the Court of Appeals decision in Esser v. Industrial Claim Appeals Office, supra, where the court determined that § 8-41-301(2)(a) is unconstitutional insofar as it requires live testimony by a licensed physician or psychologist.
Assuming, arguendo, the ALJ erroneously failed to consider Dr. Fitzpatrick’s written report, the error is harmless. The written report contains no opinion that the employer’s conduct involved a psychologically traumatic event that was beyond the claimant’s usual experience, or that such conduct would cause significant symptoms of distress in a worker in similar circumstances. Thus, consideration of the report would not change the result in this case. In any event, Dr. Fitzpatrick specifically referred to the report in his deposition, and incorporated the report as part of his testimony. (Fitzpatrick Depo. pp. 28-29). Consequently, we presume the ALJ considered the written report, even though it was not explicitly mentioned in the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1380, June 8, 2000) (ALJ under no obligation to address evidence which he or she considers to be unpersuasive).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 5, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ 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. 1999. 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 26, 2000
to the following parties:
Linda Pilkington, 12160 E. Iowa Dr., Aurora, CO 80012
Community College of Aurora, 16000 E. Centretech Pkwy., Aurora, CO 80011-1036
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Ruth K. Irvin, Esq., 5353 Manhattan Circle, #101, Boulder, CO 80303 (For Claimant)
Joel M. Pollack, Esq., 999 18th St., #3100, Denver, CO 80202
BY: A. Pendroy