City of Loveland Police Department v. Industrial Claim Appeals Office

Judge GRAHAM

concurring in part and dissenting in part.

While I concur in the statutory interpretation contained in Part TV of the majority opinion, I disagree with the conclusion that an award of benefits was proper. I would remand for a new evidentiary hearing.

I dissent because I discern no substantial evidence in the record which would meet the burden of proving compensable mental impairment under § 8-41-301(2)(a), C.R.S.2005. The two clauses of that section require that in cases of mental impairment, a claimant show that he or she suffered “a recognized, permanent disability ... arising out of and in the course of employment” and that such mental impairment was caused by 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).

Here, the claimant satisfied, with expert testimony, the requirement of showing that the disability arose out of and in the course of employment. However, she was also required to show that there was a psychologically traumatic event which caused Captain Davison to commit suicide, that such event was outside a policeman’s usual work experience, and that the event would have caused significant symptoms of distress in another worker under similar circumstances. These factors need not be established by expert testimony. Davison v. Indus. Claim Appeals Office, 84 P.3d 1023 (Colo.2004) (Davi-son II). Davison II held that an “expert must establish that the claimant has a recognized, permanent disability resulting from a psychologically traumatic event,” but other competent evidence, including nonexpert or expert testimony, may be used to prove that the injury was work related, was generally outside the worker’s usual experience or would evoke significant distress in a similarly situated worker. Davison II, supra, 84 P.3d at 1026.

A review of the procedural history in this ease is necessary to place Davison II in focus.

In a May 2000 order of remand, the Panel concluded that the evidence presented at the original hearing held in October 1998 and January 1999 did not support the ALJ’s findings, conclusions, and award of benefits. The Panel therefore remanded the case for further findings and conclusions.

Rather than take additional evidence, a new ALJ (replacing the first ALJ, who had retired) simply edited the first ALJ’s findings of fact and conclusions of law by striking a few words and by making some additions, without citation to the record. The additions to the findings were as follows:

• No. 40 was amended to include: “The work load borne by Captain Davison was extraordinary as evidenced by the fact .that following his death additional divisions were created, each headed by a captain.”
• No. 41 was amended by adding “operations Commander” to identify Captain Davison; by adding “unique” to the phrase, “multiple personnel problems”; and by adding to one unidentified personnel problem involving a seventeen-*956year-old girl, the sentence: “Another case involved officers engaging in sex acts -with prostitutes.”
• No. 42 was added to the findings. It states: The personnel problems faced by Captain Davison were extraordinary because they became an embarrassing matter of public interest and involved police misconduct violative of the public trust. These personnel issues did not involve ordinary, run of the mill personnel problems such as excessive absenteeism or poor performance.”
• No. 45(e) was amended to add: “Captain Davison had an extraordinary work load at LPD.” Also, the paragraph was amended to state, “This was not a case of an idiosyncratic response to a non-stressful or mildly stressful occurrence easily tolerated by others similarly situated.”

The conclusions of law were amended as follows:

• No. 3(d) was amended by adding: “This is not a ease of an idiosyncratic response to a non-stressful or mildly stressful occurrence easily tolerated by others similarly situated.”
• No. 3(e) was amended by adding: “Captain Davison had an extraordinary work load. He had to deal with some extraordinary personnel problems.”

Not one of these additions was based upon new evidence adduced at a new hearing. Instead, they were added by a new ALJ reading a cold record and crediting the testimony of Dr. Miller as supportive of them.

The Panel reversed this modified order on April 19, 2002. In reversing for the second time, the Panel applied § 8-41-301(2)(a), ruled that expert testimony was required to prove both prongs of that statute, and concluded that no expert testimony supported a finding that the claimánt had met her burden of proving that Captain Davison suffered a psychologically traumatic event which was outside a worker’s usual experience and was such that it would evoke significant symptoms of distress in a worker in similar circumstances.

In its April 2002 order, the Panel stated:

In support of these conclusions, the ALJ credited the testimony of the claimant’s psychiatric expert, Dr. Miller. Specifically, the ALJ credited Dr. Miller’s opinion that the decedent’s stress commenced four to five years before death and was associated with the stresses of his employment.
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We have carefully reviewed the testimony of Dr. Miller- Clearly, Dr. Miller opined the decedent experienced depression, and ultimately committed suicide, as a result of psychological pressures which he experienced at work during a four to five year period. However, we are unable to locate any portion of Dr. Miller’s testimony in which he opined the events experienced by the decedent were likely to “evoke significant symptoms of distress in a worker in similar circumstances.” Neither are we able to locate any portion of the testimony which would justify an inference that Dr. Miller believed the job pressures were sufficient to cause “significant symptoms of distress” in a reasonable worker with training and experience [similar] to that of the claimant.

A division of this court affirmed the Panel in Davison v. Industrial Claim Appeals Office, 72 P.3d 389 (Colo.App.2003) (Davison I), reversed, Davison II, supra (with Justice Kourlis dissenting).

Reversing Davison I, the supreme court concluded that § 8-41-301(2)(a) “does not categorically require a claimant to provide expert medical or psychological testimony to prove all elements of the second clause of the ‘mental impairment’ definition.” Davison II, supra, 84 P.3d at 1028. The court then remanded the case “to the court of appeals with instructions to return [it] to the ICAO to rehear the claims, and for further proceedings consistent with this opinion.” Davison II, supra, 84 P.3d at 1033 (emphasis added). In a footnote, the court observed:

We note that in ... Davison’s ... case[], the claimants did introduce some evidence to prove the event was generally outside a worker’s experience and would evoke significant symptoms of distress in a similarly situated worker.... Chief Tom Wagoner testified that the demands on *957Captain Davison would have caused Wagoner to experience significant stress.

Davison II, supra, 84 P.3d at 1032 n. 7.

Chief Wagoner did not testify that these demands were outside a worker’s usual experience. Other than this cryptic footnote, the court did not cite any other evidence. In my view, there would have been little reason to remand the case for a further hearing if the court believed that there was substantial evidence in the record to support the ALJ’s conclusions.

On remand, after the supreme court’s reversal, there was no new evidentiary hearing. Instead, the ALJ determined: “[T]he findings, conclusions and order previously entered on December 20, 2001, are supported by the evidence in the record ... [and] thus, the ALJ’s essential findings and conclusions remain unchanged .... ”

Therefore, we now have a 2005 award of benefits based upon a 1998 and 1999 hearing, held when both parties were obviously under the impression that expert testimony was required to prove all aspects of a mental impairment claim under § 8-41-301(2)(a). In addition, the ALJ credited the testimony of Dr. Miller as supporting her findings and conclusions. However, based upon the Panel’s 2002 conclusion that it could find nothing in Dr. Miller’s testimony that would support the findings and the analysis in Davison II, it is apparent that Dr. Miller’s testimony did not support the ALJ’s findings and conclusions. Indeed, the supreme court determined that a new hearing should be held because the expert evidence, even though insufficient, was not required under § 8-41-301(2)(a). Thus, a new hearing contemplated that additional findings would be made based on other (and presumably new) competent evidence — not exclusively expert testimony.

In my review of the record, I could find no substantial evidence dealing with whether any particular event experienced by Captain Davison was a psychologically traumatic or whether the events in Captain Davison’s worklife were outside the scope of his usual experiences and were so traumatic that they would create similar stress and depression in fellow workers. I found, however, testimony which showed the contrary.

Two experts testified in this matter. Neither was asked whether he could identify any specific event that was outside the usual experience of a police captain. Dr. Miller testified that Captain Davison’s depression was “caused solely by [Captain Davison’s] work” because he had “no other reasons to explain it.” But Dr. Miller went on to describe the depression suffered here as having “started several years before” with “the kind of time course one would expect in a situation where pressures of any kind have gradually begun to wear somebody down and it just gets worse and worse until finally they [sic] can’t bear it any longer.”

Contrary to any suggestion that Dr. Miller identified a significant traumatic event that triggered Captain Davison’s suicide which was outside the scope of pressures typically experienced,.Dr. Miller opined that this depression was “very consistent with the kinds of pressures that a job with increased responsibilities, increased administrative duties in a growing police force would be expected to have on such a person ” (emphasis added). Instead of tying Captain Davison’s depression to any particular traumatic event, Dr. Miller said that “depressions rarely just sort of spring full blown, they build.” He further acknowledged that Captain Davison’s depression was one “that started four or five years earlier,” and he quantified it as a “severe depression.”

When asked whether he had identified a specific event that triggered the onset of Captain Davison’s clinical depression, Dr. Miller acknowledged: “Not a specific event.”

Dr. Yandenberg testified on behalf of employer and stated that he was not able to determine what precipitated Captain Davi-son’s depression “before his suicide.”

Because neither doctor was able to identify any particular traumatic event, it is understandable that neither was asked to opine whether any traumatic events were outside a policeman’s usual experience and would evoke significant symptoms of distress, in a worker in similar circumstances.

I am unwilling to look into the penumbra of this record to find inferences and implications which would support a conclusion that *958Dr. Miller’s opinion was sufficient to meet the requirement that a psychologically traumatic event preceded Captain Davison’s death. Unlike the replacement ALJ, I can find no expert or other testimony to support the finding that “this was not a case of an idiosyncratic response to a non-stressful or mildly stressful occurrence easily tolerated by others similarly situated.”

Based upon the record, I am left to conclude, as did the first Panel, a division of this court, and by implication the Colorado Supreme Court, that there is no expert testimony which can establish the entire second clause of the mental impairment definition. However, there is in my view, expert testimony which disproves the existence of such a mental impairment.

The expert testimony also flatly contradicts any inferences that the majority seeks to draw from Chief Wagoner’s testimony. Chief Wagoner testified that police work is generally stressful. Regarding the prostitution sting, the facts concerning which were divined from a cold record by an ALJ who did not hear the evidence, the Chief stated that “everybody in the department was kind of shocked and disappointed and under stress, yes, about that.”

In fact, Chief Wagoner had ultimate responsibility for the prostitution sting and was the final arbiter of any discipline meted out by Captain Davison.

He further acknowledged that those who are responsible for managing the department all have stress in their jobs. In describing the responsibilities Captain Davison had in respect to the prostitution sting, he testified that when he determined to give Captain Davison disciplinary responsibility, he encouraged him to take some time off, play golf, and relax. Captain Davison in fact took time off, and Chief Wagoner took Davison and several others and their wives to dinner. He never suggested that this event was outside the usual experience of a police captain or that the event would have evoked suicidal ideation in other police captains.

Chief Wagoner told a local news reporter that he believed Captain Davison took his life, in part, because of the prostitution sting debacle, basing his opinion on a suicide note left by Captain Davison. Of course this lay opinion — if it is lay opinion — is difficult to extract from the record, and there is no direct testimony that the sting operation, which involved police who believed they were required to engage in a sexual act in order to document illegal activity, was the traumatic event that caused the suicide. Chief Wagoner’s opinion is flatly contradicted by the expert testimony of Dr. Miller, perhaps explaining why it was not cited by the ALJ in her findings.

Captain Davison left a suicide note that also suggested there was no traumatic event, but it gives us some explanation for the time and place of his suicide. He described no particular event that he found to be traumatic, although he described “the weight of problem solving [he had] been involved with for the past 5 years.” He stated, “[I] can no longer deal with the police dept, issues that have contributed significantly and are the cause, in my mind of my state of mind.” In great detail, he told his family goodbye and specified how he wanted his funeral to be handled. Although he said that his “character [had been] destroyed by [his] own selfish acts,” he described no particular event that led to his suicide.

It is clear from the note, however, that he contemplated the payment of death benefits. He wrote: “This act of taking my own life is job related_The federal gov’t should pay you money also as my death is job related on-duty.... If I stay I will have to quit the P.D. and that will be more painful for all. Your financial and well-being — health is more secure this way.”

Nothing in the record lends substantial support to the findings that the personnel problems at the police department were extraordinary or that there were multiple psychologically traumatic events, let alone one single traumatic event, that would evoke significant symptoms of distress in similarly situated police captains. Instead, I believe we have been provided findings by an ALJ who carefully tailored her language to track the opinion in Davison II. She should have conducted another evidentiary hearing to determine the true course of events.

*959I would therefore set aside the Panel’s award.