Update on Colorado Appellate Decisions in Workers' Compensation Law

• Publication year: 2003
• Pages: 87

32 Colo.Law. 87 Colorado Lawyer 2003.

2003, March, Pg. 87. Update on Colorado Appellate Decisions In Workers' Compensation Law

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87

Vol. 32, No. 3, Pg. 87

The Colorado Lawyer
March 2003
Vol. 32, No. 3 [Page 87]

Specialty Law Columns
Workers' Compensation Report
Update on Colorado Appellate Decisions In Workers' Compensation Law
by Ralph Ogden

This column provides updates on workers' compensation decisions of the Colorado Supreme Court and Court of Appeals It is written to help practitioners keep up with both the appellate interpretations of the Workers' Compensation Act and the potential ramifications of those interpretations

Column Editor

Ralph Ogden of Wilcox & Ogden, Denver - (303) 399-5005

About The Author:

The article was written by Column Editor Ralph Ogden of Wilcox & Ogden, Denver - (303) 399-5005.

This article discusses recent Colorado appellate decisions addressing workers' compensation issues.

Compensability

Jarosinski v. Industrial Claim Appeals Office1 held that "litigation stress" is not compensable under the "quasi-course of employment" rule. Jarosinski's claim arose out of an admitted injury in 1997, one sequela of which was depression. After a hearing, an Administrative Law Judge ("ALJ") found that Jarosinski had reached maximum medical improvement ("MMI"), that she had not suffered any permanent impairment, and that she was not entitled to medical treatment after MMI. The claimant did not appeal the ALJ's decision. In July 2000, however, she filed a petition to reopen.

In ruling on the petition to reopen, the ALJ concluded that the claimant's compensable depression had worsened as a result of her experiences during the earlier hearing. In that hearing, she had to watch surveillance videotapes of "her apparently inconsistent and possibly fabricated complaints."2 On review, the Industrial Claims Appeals Office ("ICAO") affirmed and held that psychological problems resulting from litigation stress were not compensable.

The Court of Appeals affirmed. It first noted that under the quasi-course of employment doctrine, an injury is compensable if it is sustained while a claimant is seeking authorized medical treatment.3 The Jarosinski court acknowledged that the "majority rule," as set forth in 3 Larson's Workers' Compensation Law, allows recovery for "compensation neurosis."4 According to Larson's, "assuming that the anxiety over compensation and the accompanying neurosis are genuine, the line of causation from the original injury to the present disability is unbroken."5

The court noted that the "chain of causation analysis" discussed in Larson's is reserved in Colorado for cases where a compensable injury leaves the worker in a weakened condition and where that weakened condition plays a causative role in the subsequent injury.6 Under the quasi-course of employment cases, the rationale for making the injuries compensable "is the implied contractual obligations of the employer to provide treatment and the claimant to cooperate with it, not the indirect causal relationship to the underlying workers' compensation injury."7

Finally, the Jarosinski court noted that the increased depression suffered by the claimant did not result from a weakened condition caused by the original compensable injury. On the contrary, it was caused by the claimant's reaction to the insurer's defense to her claim. The court concluded that litigation stress was an intervening event, and not "a compensable consequence of the industrial injury."8

Price Mine Service, Inc. v. Industrial Claim Appeals Office9 also involved the quasi-course of employment rule. In this case, the issue arose in the context of a dispute between an insurer and an uninsured employer over which one was liable. The claimant was initially injured on the job in 1997 while working for Price Mine, which was insured by TIG. Thereafter, Price Mine ceased operations and no longer carried workers' compensation insurance.

In 1999, the claimant aggravated his 1997 injuries and suffered new ones while returning from authorized medical treatment for the 1997 injury. TIG denied responsibility for all of the 1999 injuries, claiming that the 1999 accident constituted a distinct compensable event. The ICAO agreed and determined that Price Mine was liable for the additional benefits resulting from the 1999 injury.

The Court of Appeals reversed after applying the same quasi-course of employment rule it applied in Jarosinski.10 It held that

the proximate and natural consequences of an industrial injury and quasi-course of employment injuries, as distinguished from injuries caused by a separate, efficient intervening event, are both considered to be within the range of compensable consequences of the original injury.11

The court applied the rule even though there was a separate and distinct accident and the claimant suffered new injuries rather than aggravating old ones.

The Price Mine court noted that the ICAO had incorrectly relied on three earlier decisions: Employers Fire Insurance Co. v. Lumbermens Mutual Casualty Company;12 City of Colorado Springs v. Industrial Claim Appeals Office;13 and Citadel Mall v. Industrial Claim Appeals Office.14 Employers Fire Insurance Co. and City of Colorado Springs were inapposite because, in each case, the quasi-course of employment rule was "not central to the decision."15 Citadel Mall was distinguishable because, there, the claimant's injuries

were the result of a separate, new employment relationship and an independent injury that occurred during that relationship, which had no physical or medical connection to the first injury. The necessity for on-the-job training, resulting from the claimant's inability to perform his former job, was the only link to the first employer; the second employer was receiving the benefit of the claimant's secretarial services and partially paying for them at the time of the second injury.16

The Colorado Court of Appeals also addressed a compensability issue in Davison v. Industrial Claim Appeals Office.17 This case involved a death benefits claim by the widow of a Loveland police officer who committed suicide in 1996. She alleged that her husband had become depressed as a result of work-related stress and was especially upset when he learned shortly before his death that several officers under his command had acted improperly during a sting operation against prostitutes. At the hearing, a psychiatrist testified that job pressure, including the sting operation, was the "chief factor" in the decedent's suicide. Conflicting testimony was provided by the city's expert.

The case was remanded twice by the ICAO: once after a denial of benefits and again after an award. In his third order, the ALJ again awarded benefits. The ICAO reversed because the widow's expert had not testified that "decedent experienced a traumatic event that would evoke significant symptoms of distress in a worker in similar circumstances."18 The Court of Appeals agreed. The mental impairment statute appears at CRS § 8-41-301(2)(a):

A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. . . . "[M]ental 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 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.

The court held that this provision unambiguously requires the testimony19 of a physician or psychologist that: (1) there has been a disability from a psychologically traumatic event that does not result in a physical injury;20 and (2) the psychologically traumatic event was generally outside the worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. Because in Davison, the widow provided expert testimony only on the existence of the disability (depression), the court held that the ICAO properly denied her claim.

The court in Archer v. Farmer Bros. Co.21 addressed the question of whether injuries...