Oberle v. Industrial Claim Appeals Office of State of Colo., 95CA0934

• Decision Date: 02 May 1996
• Docket Number: No. 95CA0934,95CA0934
• Parties: Tonja S. OBERLE, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Limon Inn 4 Less, Respondents. . I
• Court: Colorado Court of Appeals

Page 918

919 P.2d 918

Tonja S. OBERLE, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Limon Inn 4 Less, Respondents.

No. 95CA0934.

Colorado Court of Appeals,

Div. I.

May 2, 1996.

Steven U. Mullens, P.C., Richard L. Susman, Steven U. Mullens, Colorado Springs; Wilcox & Ogden, P.C., Ralph Ogden, Denver, for Petitioner.

Peter E. Morgan, Denver, for Respondent Limon Inn 4 Less.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Mary Karen Maldonado, Assistant Attorney General, Denver, for Respondent Industrial Claim Appeals Office.

Opinion by Chief Judge STERNBERG.

Tonja Oberle (claimant) seeks review of the final order of the Industrial Claim Appeals Panel that dismissed her claim for workers' compensation benefits. We set aside the order and remand for further proceedings.

This case turns on the meaning of the term "physical injury" as used in § 8-41-301(2)(a), C.R.S. (1995 Cum.Supp.), which requires that claims of mental impairment involving no physical injury be "proven by evidence supported by the testimony of a licensed physician or psychologist." In overruling a finding of compensability by an Administrative Law Judge (ALJ), the Panel determined that the claim did not involve a physical injury. Thus, since claimant had been provided clinical psychotherapy treatment by a licensed professional counselor, not a licensed physician or a psychologist, the Panel ruled that the statute barred the claim. We disagree with the conclusion that this claim did not involve a physical injury and, therefore, reject the Panel's conclusion that the claim was barred.

Claimant was sexually assaulted while employed as a maid at the Limon Inn 4 Less Motel (employer). The perpetrator, a friend of claimant's supervisor, walked into the motel room where she was working, physically assaulted her by grabbing her buttocks and pinching her. He also touched her breasts, arms, and face, kissed her against her will, and spoke to her in crude sexual terms. Although claimant did not sustain any visible physical injury from the incident, she testified that she experienced physical pain, as well as various emotional injuries. The man was later convicted of third degree sexual assault.

Claimant was referred by the District Attorney's Office to a licensed professional counselor for treatment. The counselor provided psychotherapy services in a clinical setting but is neither a licensed physician nor a psychologist. At the hearing held to determine whether claimant was entitled to workers' compensation benefits, the counselor testified that claimant suffered from post-traumatic stress disorder, major depression with suicidal ideation, and agoraphobic tendencies.

The ALJ found that the sexual assault perpetrated on claimant constituted a compensable injury and awarded claimant temporary total disability benefits. In response to employer's petition to review, the ALJ issued a supplemental order finding that the rage, humiliation, and victimization that claimant suffered as a result of the sexual assault was real and the continuing disability that resulted from the sexual assault vocationally disabled claimant.

The Panel reversed the ALJ's supplemental order and denied the claim for benefits. Disagreeing with the ALJ's findings, the Panel found that the claim was for mental impairment based on a psychologically traumatic event that did not involve a physical injury. The Panel adopted a definition of "physical injury" as one involving an "independently disabling injury." It ruled, therefore, that the claim fell under the mental impairment statute and dismissed the claim because it was not supported by the testimony of a licensed physician or psychologist as required by that statute.

I.

Claimant argues that the Panel erred in concluding that the term "physical injury" in the mental impairment statute contemplates an independently disabling injury. We agree.

Section 8-41-301(2)(a) provides:

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 psychological traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in a similar circumstance. (emphasis supplied)

We do agree with the Panel that, in an effort to eliminate frivolous "stress" claims, the General Assembly differentiated between cases in which physical injury causes mental impairment ("mental-physical") and those where mental impairment follows solely an emotional stimulus ("mental-mental"). Cases in which the claimed disability is based on emotional or psychological causes and in which physical...