Update on Colorado Appellate Decisions in Workers' Compensation Law

• Publication year: 2004
• Pages: 83
• Citation: Vol. 33 No. 4 Pg. 83

33 Colo.Law. 83 Colorado Lawyer 2004.

2004, April, Pg. 83. Update on Colorado Appellate Decisions In Workers' Compensation Law

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83

Vol. 33, No. 4, Pg. 83

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page 83]

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

This column provides information about workers' compensation updates on decisions of the Colorado Supreme Court and Court of Appeals. It intends 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, Denver, of Wilcox & Ogden - (303) 399-5005

About The Author:

The author and column editor is Ralph Ogden of Wilcox & Ogden, Denver - (303) 399-5005. The author represents parties in several cases that are discussed in this article: Charlene Wolford in Wolford v. Pinnacol Assurance; Sherry Mosley in Mosley v. ICAO; and Susan Provo in Dworkin, Chambers & Williams, P.C. v. Provo.

Key Words and Acronyms

Act:
ALJ:
AWW:
DIME:
Director:
Division:
Employer:
ICAO:
MMI:
Panel:
PALJ:
PPD:
PTD:
TTD:

Workers' Compensation Act
administrative law judge
average weekly wage
Division Independent Medical Examination
Director of the Division of Workers' Compensation
Division of Workers' Compensation
Employers and insurers collectively, as used by the Colorado Court of Appeals
Industrial Claim Appeals Office
maximum medical improvement
Industrial Claim Appeals Office Panel
prehearing administrative law judge
permanent medical impairment (the "acronym" refers to pre-1991 terminology)
permanent total disability
temporary total disability

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.

Mental Impairment
Benefits

In Davison v. ICAO,1 the Colorado Court of Appeals construed the mental impairment statute, CRS § 8-41-301 (2)(a). The court held that the statute requires an injured worker who seeks recovery for a mental trauma that is not accompanied by a physical injury to prove by expert medical or psychological evidence: (1) the existence of a disability from a psychologically traumatic event that does not result in a physical injury; and (2) that the psychologically traumatic event is generally outside a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.2

On June 30, 2003, the Colorado Supreme Court granted certiorari in Davison and in an unpublished companion case to decide whether expert testimony must be sufficient by itself to prove all elements of a mental impairment claim.3 The Court reversed both decisions and held that CRS § 8-41-301(2)(a) did not require expert testimony on the second element:

. . . Expert testimony must prove that the claimant suffered a recognized, permanent disability as the result of a psychologically traumatic event. Other competent evidence is admissible to prove that the injury was outside the worker's usual experience, and that similarly situated workers would have reacted similarly.4

The Court began its analysis by noting that the purpose of the Act was "remedial and beneficent in purpose"5 and that it should be liberally construed to effectuate this purpose. It then noted that this rule of liberal construction was to be balanced against the legislative purpose behind the enhanced evidentiary requirements of the mental impairment statute: the detection of frivolous mental impairment claims. Mental impairment claims, by their very nature, are less subject to direct proof. Frivolous mental impairment claims are, therefore, more difficult to detect.

Employing the traditional rules of statutory construction, the Court addressed the meaning of the requirement that mental impairments unaccompanied by any physical injury must be "proven by evidence supported by the testimony of a licensed physician or psychologist."6 The Court held that if the legislature had intended expert testimony to be the exclusive means of proving all aspects of the claim, it would have used the word "proven" without the phrase "supported by."7

The Court looked to the dictionary definition of "support" and noted that it meant to "serve as the foundation for" or "to corroborate."8 Thus, in the context of CRS § 8-41-301(2)(a), the language "supported by" meant that expert testimony must provide the foundation for or corroborate the claim. However, the Court stated that the legislature did not intend to require that all evidence be provided through expert testimony. It held:

[T]he evidence presented must include expert testimony only as to those elements of the "mental impairment" definition that fall within the purview of the licensed physician's or psychologist's expertise. A claimant may introduce other competent evidence to prove any aspects of the claim that are not susceptible to expert medical or psychological opinion.9

In other words, expert medical or psychological testimony must be used to prove that the claimant suffered a psychologically traumatic event. Nevertheless, either lay or expert testimony, or a combination of the two, could be used to prove that the event was outside a worker's usual experience and that it would cause a similar reaction in a similarly situated worker.

The Court concluded by expressing its general concern about requiring a medical or psychological expert to testify about whether the event was outside a worker's usual experiences on the job and whether it would cause a similar reaction in other workers. Although some medical or psychological experts might be qualified to render these opinions, most would not. Instead, "lay or expert testimony, or some combination of the two, may be necessary to prove that the traumatic event is outside a worker's usual experience and would cause a similar reaction in a similarly situated worker."10 Thus, the Court would not construe the mental impairment statute as requiring an expert to testify outside his or her area of expertise. As the Court noted, "to testify on matters outside the expert's area of expertise would be contrary to the expert's professional duties and responsibilities."11

Exclusivity Rule

Schwindt v. Hershey Foods Corporation12 deals with the exclusivity rule, under which a worker's exclusive remedy for injuries he or she sustains in the course and scope of employment is covered under the Act.13 In this case, an employee was injured on the job while operating one of his employer's machines. He filed a common law tort action in which he and his wife alleged that the employer had modified the machine to bypass a safety switch and forced him to operate it with inoperable safety guards. They alleged that the employer knew that operating the machine under these circumstances was dangerous and nonetheless refused to replace the switch.

The trial court granted the employer's motion to dismiss under Colorado Rules of Civil Procedure ("C.R.C.P." or "Rules") 12(b)(5), for failure to state a claim on which relief could be granted. On appeal, the court first noted:

An employer may be held liable to an employee for common law damage claims for intentional torts committed by the employer or the employer's alter ego "if the employer deliberately intended to cause the injury and acted directly, rather than constructively through an agent."14

The decision to affirm the dismissal was based in large part on the language of the complaint. The court agreed with the trial court that at most, the plaintiffs had alleged gross negligence instead of willful or intentional injury, and gross negligence was not sufficient to defeat the exclusivity rule.

Thus, although the plaintiffs alleged that the employer acted in "willful, wanton and reckless disregard for the health and safety"15 of the employee and others, they did not allege that the employer actually intended to cause the injury.16 This failure mandated dismissal.

In reaching its conclusion, the Court of Appeals rejected the worker's claim that the exclusivity rule did not apply if the employer knew its misconduct was "substantially certain" to cause injury or death. This was not, in the court's view, the same as pleading "an actual and deliberate intent" by the employer to cause an injury.17 The court stated, "only the actual intent to injure would allow a common law suit for damages."18

The court also rejected the plaintiffs' contention that they were entitled to an evidentiary hearing before the court ruled on the motion to dismiss under Trinity Broadcasting of Denver, Inc. v. City of Westminster.19 It reiterated the long-standing rule that under C.R.C.P. 12(b)(5), a court may not consider any matter outside the four corners of the complaint. The court simply determines whether, based on the allegations of the complaint viewed in the light most favorable to the plaintiff, the plaintiff can recover from the defendant under any set of facts and any legal theory.20 It also held that "a motion to dismiss based on the exclusivity provisions of the Act does not go to the subject matter jurisdiction of the court."21

Thus, if the plaintiff...