Davison v. Industrial Claim Appeals Office, No. 03SC179

• Docket Nº: No. 03SC83.
• Citation: 84 P.3d 1023
• Case Date: February 09, 2004
• Court: Supreme Court of Colorado

84 P.3d 1023

Lana Lea DAVISON, Petitioner,
v.
The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, The City of Loveland Police Department, and CIRSA, Respondents.
Cheryl Mobley, Petitioner,
v.
The Industrial Claim Appeals Office of the State of Colorado and King Soopers, Respondents

Nos. 03SC179, 03SC83.

Supreme Court of Colorado, En Banc.

February 9, 2004.

As Modified on Denial of Rehearing March 1, 2004.

84 P.3d 1025

Steven U. Mullens, P.C., Andrew C. Gorgey, Steven U. Mullens, Colorado Springs, Colorado, Attorneys for Petitioner, Cheryl Mobley

Jan A. Larsen, Fort Collins, Colorado, Attorney for Petitioner, Lana Lea Davison.

Ken Salazar, Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent, Industrial Claim Appeals Office.

Weinberger & Serruto, P.C., Robert A. Weinberger, Kristin M. Murphy, Denver, Colorado, Attorneys for Respondent, King Soopers.

Nathan, Bremer, Dumm & Myers, P.C., Anne Smith Myers, Michelle N. Young, Denver, Colorado, Attorneys for Respondents, City of Loveland Police Department and CIRSA.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

Consolidating two cases for opinion, we interpret a section of the Workers' Compensation Act that awards benefits to a worker who is permanently disabled by a job-related psychological trauma. We granted certiorari on two cases in which claimants were denied workers' compensation benefits because they did not present expert medical or psychological testimony regarding both clauses of "mental impairment" as defined by section 8-41-301(2)(a),

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3 C.R.S. (2003).¹ The two clauses of the "mental impairment" definition require the injury: 1) to be "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 2) consist 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." There is no dispute that section 8-41-301(2)(a) requires a claim of mental impairment to be proved by evidence "supported by" the testimony of a licensed physician or psychologist. Rather, what is at issue in both of these cases is whether such expert testimony must be sufficient in itself to prove all elements of mental impairment, as defined by the statute.²

In the first case, Davison v. Industrial Claim Appeals Office, 72 P.3d 389 (Colo.App. 2003), the Administrative Law Judge ("ALJ") found that the claimant, Lana Lea Davison, met her burden of proof under section 8-41-301(2)(a). § 8-41-301(2)(a), 3 C.R.S. (2003). However, the Industrial Claim Appeals Office ("ICAO") reversed, concluding the evidence was insufficient to support an award of benefits because the claimant's expert did not testify as to the second clause of the "mental impairment" definition. The court of appeals affirmed the ICAO's denial of the claim. Id.

In the second case, Mobley v. Industrial Claim Appeals Office, W.C. No. 4-359-644, 2003 WL 306131 (Colo.App. Feb.13, 2003), the ALJ and the ICAO similarly denied Cheryl Mobley's workers' compensation claim because she did not present expert testimony supporting the conclusion that the events at issue would evoke symptoms of distress in a worker similarly situated. The court of appeals affirmed, finding that section 8-41-301(2)(a) clearly imposes the requirement that expert testimony establish both statutory clauses of a mental impairment claim. Id.

We hold that under section 8-41-301(2)(a), a medical or psychological expert witness must testify as to those matters within his or her expertise. Specifically, the expert must establish that the claimant has a recognized, permanent disability resulting from a psychologically traumatic event. A Claimant may introduce any competent evidence, including non-expert or expert testimony, to prove that an injury arose in the course and scope of employment, was generally outside a worker's usual experience, or would evoke significant distress in a similarly situated worker. We therefore reverse the judgments of the court of appeals in both cases, and remand them for further proceedings consistent with this opinion.

II. Facts and Proceedings Below

A. The Davison Case

The first case involves a workers' compensation claim for death benefits. Claimant Lana Lea Davison is the widow of David Davison, a captain in the City of Loveland Police Department ("LPD") who committed suicide in 1996. Davison filed a workers' compensation claim shortly thereafter, alleging her husband's depression and suicide stemmed from job-related stress.

For approximately three years, as captain of the Operations Division of the LPD, David Davison had responsibility for dealing with all personnel issues, which required him to impose discipline on other officers when necessary. This became a source of significant stress for him, resulting in untreated, clinical depression. Shortly before his death, Captain

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Davison's distress became particularly acute when he learned that police officers under his command had engaged in improper conduct during a sting operation intended to apprehend prostitutes.³ Also contributing to Captain Davison's deepening and ultimately psychotic depression during this time period were the death of his brother in 1994 and his wife's diagnosis with hepatitis in 1995

In support of her claim, Davison presented the expert testimony of Dr. Robert David Miller, a licensed psychiatrist. Dr. Miller assessed Captain Davison's psychiatric condition prior to his death, and diagnosed an occupational disease of depression. Specifically, Dr. Miller opined that the precipitating and chief factor in the development of Captain Davison's depression was the stress caused by his employment, which had been building over four to five years. Captain Davison's supervisor, Chief Tom Wagoner, also testified. During cross-examination, Chief Wagoner acknowledged that the demands on Captain Davison, had he experienced them himself, would have caused him to experience significant stress.

The ICAO remanded this case twice, the first time after the ALJ denied the claim, and the second time after death benefits were awarded. Addressing the second clause of the "mental impairment" definition, the ALJ concluded that while other factors were in play, Captain Davison's depression was principally caused by the stress of his job at the LPD. The ALJ further found that the type of job pressures he experienced were unique, outside a police captain's usual experience, and would evoke significant symptoms of distress in a similarly situated police captain.

The ICAO reversed and denied Davison benefits, concluding that she failed to prove her claim because no medical or psychological expert testified as to the second clause of section 8-41-301(2)(a), namely whether Captain Davison experienced a traumatic event that would evoke significant symptoms of distress in a worker in similar circumstances.

The court of appeals affirmed the ICAO decision, rejecting Davison's argument that physicians and psychologists are unequipped to testify as to the usual experiences of workers in various types of employment. The court held: "Because we cannot say that such topics are necessarily beyond the expertise or specialized knowledge of physicians or psychologists, we apply the statute as written." The court of appeals held that section 8-41-301(2)(a) clearly requires a medical or psychological expert to testify as to both clauses of mental impairment, as defined by the statute. Davison v. Indus. Claim Appeals Office, 72 P.3d 389, 391 (Colo.App. 2003). The court held this requirement, which imposes a high burden of proof on mental impairment claims, was consistent with the legislative intent to eliminate frivolous claims.

B. The Mobley Case

Claimant Cheryl Mobley, a pharmacist employed by the King Soopers grocery store chain, was called to a meeting with her store manager and two security officers in August 1997. As she reached the top of the stairs on her way to the meeting room, one of the security officers allegedly "bumped" her, startling her and causing her to almost fall backward down the stairs. During the meeting, Mobley claims the meeting room was locked and that she was not permitted to leave. Mobley testified that she was initially unaware of the purpose of the meeting, but asked for a union representative if it was disciplinary in nature. At that point, Mobley claims the same security officer who bumped her became agitated, and banged his fists on the table. The store manager then told Mobley to inform her union representative that the meeting concerned an investigation involving her "time card irregularities." Ultimately, when no union representative could be found, the manager terminated the meeting.⁴

84 P.3d 1028

Shortly after the meeting, Mobley experienced trouble breathing and tightness in her chest. She contacted her physician, Dr. Bernard Gipson, who advised her to report to the emergency room. After several hours of observation, Mobley's treating physician diagnosed a stress reaction, but advised that she follow up with her own doctor. Upon evaluating Mobley, Dr. Gipson filled out a disability certificate stating she was totally incapacitated and should not return to work until her symptoms could be further evaluated. Mobley's treating psychiatrist, Dr. Ruth Fuller, subsequently diagnosed Mobley with "major depression, single episode without psychosis, severe" and post-traumatic stress disorder related to work

Mobley filed a workers' compensation claim for mental impairment benefits. Hearings were subsequently held before an ALJ. Mobley presented the testimony of four medical experts, who testified regarding Mobley's medical and psychological problems arising from the incident at work. One of the...