DEPT. OF LABOR AND EMPLOYMENT v. Esser, No. 00SC292.

• Decision Date: 04 June 2001
• Docket Number: No. 00SC292.
• Citation: 30 P.3d 189
• Parties: The COLORADO DEPARTMENT OF LABOR AND EMPLOYMENT, Division of Workers' Compensation; Mary Ann Whiteside, in her official capacity as the Director of the Division of Workers' Compensation; Colorado Compensation Insurance Authority; and the Colorado Department of Corrections, Petitioner, v. Florence ESSER and the Industrial Claim Appeals Office, Respondent.
• Court: Colorado Supreme Court

30 P.3d 189

The COLORADO DEPARTMENT OF LABOR AND EMPLOYMENT, Division of Workers' Compensation; Mary Ann Whiteside, in her official capacity as the Director of the Division of Workers' Compensation; Colorado Compensation Insurance Authority; and the Colorado Department of Corrections, Petitioner, v. Florence ESSER and the Industrial Claim Appeals Office, Respondent.

No. 00SC292.

Supreme Court of Colorado, En Banc.

June 4, 2001.

As Modified on Denial of Rehearing June 25, 2001.

Ken Salazar, Attorney General, Mark W. Gerganoff, Assistant Attorney General, Denver, CO, Attorneys for Petitioners The Colorado Department of Labor and Employment, Division of Workers' Compensation; Mary Ann Whiteside, in her Official Capacity as the Director of the Division of Workers' Compensation.

Eley & Eley, Craig C. Eley, Denver, CO, Attorney for Respondent Florence Esser.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari to determine the meaning of the requirement of section 8-41-301(2)(a), 3 C.R.S. (2000), that any request for workers' compensation arising from a claim of mental impairment be "proven by evidence supported by the testimony of a licensed physician or psychologist."¹ The Administrative Law Judge (ALJ) and Industrial Claim Appeals Office (ICAO) ruled that, because the claimant did not present oral testimony, only reports and letters of a licensed physician or psychologist, her request for workers' compensation benefits must be denied for failure to meet her burden of proof under section 8-41-301(2)(a). The court of appeals, finding that the section's requirement of oral testimony violated the claimant's constitutional equal protection rights, reversed the agency decision, and sent the case back to the ICAO with directions to require the ALJ to reconsider the claimant's claim. Esser v. Indus. Claim Appeals Office, 8 P.3d 1218, 1223 (Colo.App. 2000).

We hold that section 8-41-301(2)(a) does not require a claimant to provide oral licensed physician or psychologist testimony. Written testimony suffices, subject, however, to the ability of any party on request to cross-examine at a hearing or deposition the professional who authored the written material the claimant presents. We therefore affirm the judgment of the court of appeals, remanding the case for further proceedings, but we do so on different grounds from that of the court of appeals. We hold that the statutory term "evidence supported by the testimony of a licensed physician or psychologist" in section 8-41-301(2)(a) encompasses written material authored by a licensed physician or psychologist, including written reports, statements, notes, or other documents relevant to the mental impairment claim. Accordingly, we do not reach the constitutional grounds the court of appeals addressed.

I.

Claimant Florence Esser (Esser) worked as a corrections officer at the Cañon City Correctional Facility run by the Colorado Department of Corrections (DOC) from March 1, 1990 until December 19, 1994. During this time she was promoted to the position of sergeant, and was last working as a "control center officer." Beginning in 1993, the prison facility was short-staffed, and Esser was forced to work long hours, sometimes without the opportunity for a break. The situation worsened in the fall and winter of 1994.

During that same time, Esser began having what she thought were physical problems. Her heart raced, and she experienced numbness in one arm. On December 19, 1994, while working an evening shift, Esser became ill with what she feared was a heart attack, complaining of severe chest pains and numbness in both arms. She was taken to the Delta County Memorial Hospital. After finding Esser's blood pressure at an elevated 227/125, the Delta County Hospital staff sent her to St. Mary's Hospital in Grand Junction, where she stayed overnight. After seeing several different physicians and psychologists in the following months, Esser was diagnosed with numerous disorders including panic attacks, anxiety, depression, probable coronary artery disease, hyperlipidemia, situational stress, and post traumatic stress disorder. After consultation, her personal physician and other medical professionals told Esser that her job situation caused her stress and at least some of the related diseases. Her personal physician advised her to seek other employment.

Esser tendered her resignation on January 6, 1995. It became effective on January 15, 1995. Thereafter, Esser filed for social security benefits. In August 1996, the Social Security Administration determined that Esser had been totally disabled since December 19, 1994, and she began receiving benefits thereafter. In the fall of 1996, having received the final social security medical report, she filed a claim for short-term disability benefits with the State of Colorado's short-term disability insurance carrier, Standard Insurance Company. Pursuant to a letter dated January 7, 1997, Standard notified Esser of an award of short-term disability benefits to her, and a denial of long-term benefits. Esser subsequently requested a workers' compensation claim number from the Colorado Department of Labor and Employment, Division of Workers' Compensation, in order to pursue workers' compensation benefits for her mental impairment claim.

On September 9, 1998, the Colorado Division of Administrative Hearings held a hearing on Esser's workers' compensation claim. At the hearing, Esser testified and presented several written medical and psychological reports, notes, and other documents of Colorado licensed physicians and psychologists to support her claim that her job as a corrections officer caused her mental impairment.² The hearing officer admitted these written materials into evidence without objection from the DOC. Esser presented no oral medical or psychological testimony at the hearing, nor did she submit a deposition, a form of oral testimony. At the close of Esser's evidence, the DOC moved to dismiss Esser's claim for failure to present the oral testimony of a licensed physician or psychologist, citing section 8-41-301(2)(a). The ALJ granted the motion to dismiss, thereby denying Esser's claim for benefits.

On appeal to the ICAO, that agency affirmed. Esser v. Dep't of Corrs., W.C. X-XXX-XXX (Jan. 6, 1999). The ICAO, like the ALJ, found that section 8-41-301(2)(a) "requires that a claim for mental impairment be supported by the presentation of oral testimony from a licensed physician or psychologist," upholding the hearing officer's determination. The ICAO declined to address Esser's argument that the distinction between evidentiary requirements as between mental and physical claims violated her equal protection rights, stating that "we lack authority to consider [Esser's] constitutional challenge of the statute."

The court of appeals set aside the ICAO's order and remanded the case for further consideration. Esser, 8 P.3d at 1223. It held, first, that Esser's claim is subject to the requirements of section 8-41-301(2)(a), because her claim was for a mental impairment, not a physical one. Id. at 1221. Because this was the case, the court stated, Esser was required by section 8-41-301(2)(a) to present "live expert `testimony' to support the claim." Id.

The court of appeals next addressed Esser's claim that section 8-41-301(2)(a)'s requirement of "live expert testimony" is unconstitutional. The court agreed with Esser, holding that the oral testimony requirement of section 8-41-301(2)(a) violated Esser's equal protection rights because there was no rational basis for requiring oral testimony for mental impairment claims but not for physical claims. See id. at 1222-23.

We determine that section 8-41-301(2)(a) does not require a mental impairment claimant to present oral testimony of a licensed physician or psychologist at a hearing or deposition as a prerequisite to an award of benefits. Written testimony suffices. Thus, we need not determine whether the statute's requirements create an equal protection violation. We therefore affirm the holding of the court of appeals, but on different grounds.

II.

We hold that the statutory term "evidence supported by the testimony of a licensed physician or psychologist" in section 8-41-301(2)(a) encompasses written material authored by a licensed physician or psychologist, including the licensed professional's written reports, statements, notes, or other documents relevant to the mental impairment claim.

A. Standard of Review

An ALJ's decision involving the application of facts to law on behalf of the agency is normally subject to review under an abuse of discretion standard. See Indus. Claim Appeals Office v. Orth, 965 P.2d 1246, 1255 (Colo.1998)

; Coates, Reid & Waldron v. Vigil, 856 P.2d 850, 856 (Colo.1993). Although we defer to the agency's determinations of fact, we review its conclusions of law de novo. Vigil, 856 P.2d at 856. We give considerable weight to an agency's interpretation of its own enabling statute, unless the agency's interpretation is not in accordance with the law.³

CF & I Steel, L.P. v. Pub. Utils. Comm'n, 949 P.2d 577, 585 (Colo.1997).

Nevertheless, conclusions of law, including interpretations of the constitutions and statutes, are always subject to de novo review. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797, 802 (Colo.2001).

The question before us is a matter of statutory construction, which is the traditional province of the courts. Bd. of County Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263, 1272 (Colo.2001). We commence our analysis presuming that a statutory provision is constitutional. City of Greenwood Village v. Proposed City of Centennial, 3 P.3d 427, 440 (Colo.2000). If alternative constructions of a statute — one constitutional, the other unconstitutional — may apply to the case under review, we choose the one that renders the statute constitutional or avoids the constitutional issue. People v. Hickman, 988...