Loveland Pol. Dep. v. Ind. Claim App. off.

• Decision Date: 18 May 2006
• Docket Number: No. 05CA0165.,05CA0165.
• Citation: 141 P.3d 943
• Parties: CITY OF LOVELAND POLICE DEPARTMENT and CIRSA, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Lana Lea Davison, and David Allan Davison, deceased, Respondents.
• Court: Colorado Court of Appeals

141 P.3d 943

CITY OF LOVELAND POLICE DEPARTMENT and CIRSA, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Lana Lea Davison, and David Allan Davison, deceased, Respondents.

No. 05CA0165.

Colorado Court of Appeals, Div. II.

May 18, 2006.

Certiorari Denied September, 11, 2006.

COPYRIGHT MATERIAL OMITTED

Nathan, Bremer, Dumm & Myers, P.C., Anne Smith Myers, Allison R. Ailer, Denver, Colorado, for Petitioners.

No Appearance for Respondent Industrial Claim Appeals Office.

Law Offices of Jan A. Larsen, P.C., Jan A. Larsen, Fort Collins, Colorado, for Respondents Lana Lea Davison and David Allan Davison, Deceased.

ROTHENBERG, J.

In this workers' compensation proceeding, City of Loveland Police Department and its insurer, CIRSA (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) awarding death benefits to Lana Lea Davison, the widow of David Allan Davison. Because we conclude there is sufficient evidence in the record to satisfy the requirements of § 8-41-301(2)(a), C.R.S.2005, which permits a claim for death benefits to be based on mental impairment, we affirm.

I. Background

This case has a lengthy history. David Allan Davison was a captain in the Loveland Police Department for many years until he committed suicide in 1996. During the time he worked for the department, he was one of two captains employed there. The captains had different assignments and duties. A few months before his death, Captain Davison was assigned to the Services Division, where he was responsible for certain disciplinary actions.

Two hearings were held before an administrative law judge (ALJ) in October 1998 and January 1999. According to the testimony presented, Captain Davison had been suffering from depression for four to five years, and in the two years leading up to his death, he also experienced a number of unfortunate personal and professional events, including the unexpected death of his younger brother in 1994 and Mrs. Davison's diagnosis of a serious illness in 1995. However, there was testimony that Captain Davison's stress increased dramatically on or about April 4, 1996, when a newspaper reporter informed him and his supervisor, Chief of Police Tom Wagoner, that several officers had engaged in sexual acts with prostitutes while conducting a sting operation regarding a prostitution ring. According to the testimony of Chief Wagoner, this was highly irregular activity by the officers which had been done without his or Captain Davison's knowledge or approval. Furthermore, the officers claimed their actions were at the request of the local prosecutor. The officers had fully disclosed these activities in their reports, which apparently were discovered by the media.

The officers' conduct during the sting operation attracted a significant amount of media attention and criticism of the department. On April 11, 1996, Chief Wagoner gave Captain Davison the sole responsibility of disciplining the officers involved in the sting operation. Chief Wagoner testified that after he told Captain Davison he was to handle the discipline process alone, Captain Davison broke down and cried. According to Chief Wagoner, this was highly unusual behavior for Captain Davison. Captain Davison was so upset that Chief Wagoner responded by agreeing to share the responsibility.

Captain Davison committed suicide on April 16, 1996, leaving behind a note that described the causes and extent of his depression.

After the suicide, Mrs. Davison filed the claim for workers' compensation benefits at issue here, which employer contested. She maintained that her husband's psychological injury and resulting suicide were caused by job-related stress and were compensable under § 8-41-301(2)(a), which permits a claim to be based on mental impairment. Under the statute, "mental impairment" means

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 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.

Section 8-41-301(2)(a).

At the hearings, Mrs. Davison presented the testimony of Dr. Robert David Miller, a professor in charge of the forensic psychiatry program at the Health Sciences Center. He was also an adjunct professor of law at the University of Denver College of Law, a director of research of forensics at the state hospital in Pueblo, and was certified by the American Board of Forensic Psychiatry, the American Board of Psychiatry and Neurology in general psychiatry, and the American Board of Psychiatry and Neurology in forensic psychiatry.

Dr. Miller testified that Captain Davison had been suffering from depression resulting from a combination of job pressures, which had been building over four to five years. Dr. Miller expressed his opinion, however, that the precipitating and chief factor in the development of Captain Davison's depression was the stress caused by his employment.

Employer presented the testimony of Dr. Richard Vandenberg, a psychiatrist who had been in private practice for approximately thirty years. Dr. Vandenberg taught and supervised residents at the University of Colorado Health Sciences Center, was board eligible in psychiatry, and was recognized as a "Life Fellow" by the American Psychiatric Society. He expressed the opinion that Captain Davison's death was caused by biological changes resulting from "a serious underlying depression." He stated that by the time of the suicide, "external events wouldn't be nearly as important" as biological changes resulting from the untreated depression.

The ALJ denied Mrs. Davison's claim in March 1999, after finding that Captain Davison's depression and death were not related to his employment. The ALJ made no findings regarding the other requirements of the statute.

In May 2000, the Panel remanded the case for entry of a new order because it concluded "the evidence does not support the ALJ's finding that [Dr. Vandenberg] opined [Captain Davison's] depression `was not precipitated by his employment.'" The Panel explained:

At most, Dr. Vandenberg opined that [Captain Davison's] depression immediately preceding the suicide was caused by brain chemistry, not the circumstances of employment. However, Dr. Vandenberg rendered no opinion concerning whether or not [Captain Davison's] employment was a precipitating factor in the claimant's initial period of depression. Furthermore, the record contains some evidence which would support an inference that the claimant's depression was precipitated by his employment.

When the case was remanded, the original ALJ had retired and was replaced by another ALJ, who examined the record and entered a second order in May 2001. In that order, the ALJ observed that both psychiatrists "agreed that it was Captain Davison's depressive disorder which [led] to his suicide." The ALJ also discussed the differences in their opinions:

Dr. Vandenberg testified that, in people with major depressive disorder, the precipitating event that can be found is usually found in the first episode when they get depressed; that depression is biological .... A major depressive disorder can be caused by stress. Dr. Vandenberg did not, however, give an opinion as to the initial cause or stresses of Captain Davison's depression and he did not state that stresses of Captain Davison's job were not the initial cause of his depression.

In contrast, Dr. Miller gave the opinion that Captain Davison's initial depression was caused by the stresses of his work at the [Loveland Police Department]. The ALJ credits this opinion. Captain Davison's depression was precipitated four to five years before his death, well before his brother's death in 1994 and . . . the diagnosis of his wife's illness [in] 1995.

The ALJ found that "[w]hile there were other factors in play, Captain Davison's depression arose primarily from his occupation and his place of employment." The ALJ concluded his death was compensable and awarded death benefits to Mrs. Davison.

Employer appealed, and in October 2001, the Panel set aside the order and remanded for a second time. The Panel concluded that the ALJ had not applied the appropriate legal standard because she had not determined "whether the allegedly traumatic events were beyond [Captain Davison's] usual experiences as a police captain" and "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." The Panel instructed the ALJ to determine "whether these elements of proof are supported by the testimony of a licensed physician or psychologist."

In December 2001, the ALJ entered a third order, again awarding death benefits to Mrs. Davison. In this order, the ALJ specifically addressed the elements required by § 8-41-301(2)(a) and found that (1) while other factors were involved, Captain Davison's depression was principally caused by job stress; (2) the job pressures he faced were unique and outside a police captain's usual experience; and (3) they would evoke significant symptoms of distress in a similarly situated police captain.

Employer appealed again, and in an order dated April 9, 2002, the Panel reversed the award of death benefits. The Panel rejected Mrs. Davison's contention that expert testimony was not required to prove all elements of the statute. The essence of the Panel's decision was that Mrs. Davison had failed to produce expert testimony from a "`licensed physician or psychologist' to `support' findings that the alleged psychologically traumatic events were outside `a worker's usual experience' and would evoke `significant symptoms of distress in a worker in similar circumstances.'"

Mrs. Davison...