First Regular Session

Sixty-first General Assembly

LLS NO. 97­0383.01 DHG SENATE BILL 97­140

STATE OF COLORADO

BY SENATOR Norton;

also REPRESENTATIVE C. Berry.

STATE, VETERANS &

MILITARY AFFAIRS

REENGROSSED

A BILL FOR AN ACT

CONCERNING BENEFITS UNDER THE "WORKERS' COMPENSATION ACT OF COLORADO" FOR WORK­RELATED INJURIES RESULTING IN IMPAIRMENT DUE TO MENTAL OR EMOTIONAL STRESS.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments which may be subsequently adopted.)

Makes a legislative declaration with respect to overall state policy related to workers' compensation benefits for work­related injuries caused by mental stress on the job. Makes a legislative declaration stating the general assembly's intent to apply the 12­week limitation on mental impairment benefits to both permanent and temporary disability benefits under the workers' compensation system, thereby legislatively reversing a contrary decision of the Colorado supreme court.

Changes terminology for workers' compensation benefits for mental impairment injuries from medical impairment benefits to mental impairment benefits in order to clarify that the 12­week limitation applies to permanent and temporary disability benefits.

Sets forth criteria for determining eligibility for benefits for physical­mental impairment. Limits benefits for physical­mental impairment to 12 weeks of medical impairment benefits after reaching maximum medical improvement.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  8­41­301 (2), Colorado Revised Statutes, 1986 Repl. Vol., as amended, is amended, and the said 8­41­301 is further amended BY THE ADDITION OF A NEW SUBSECTION, to read:

8­41­301.  Conditions of recovery ­ injuries resulting in mental or emotional stress ­ legislative declaration. (2) (a) (I)  THE GENERAL ASSEMBLY FINDS AND DETERMINES THAT WORK­RELATED MENTAL OR EMOTIONAL STRESS IS DIFFERENT FROM WORK­RELATED INJURIES AND OCCUPATIONAL DISEASE RESULTING SOLELY IN A PHYSICAL IMPAIRMENT. THE GENERAL ASSEMBLY, THEREFORE, DECLARES THAT, FOR PURPOSES OF BENEFITS UNDER ARTICLES 40 TO 47 OF THIS TITLE, WORK­RELATED MENTAL OR EMOTIONAL STRESS MUST BE TREATED IN A DIFFERENT MANNER FROM INJURIES OR OCCUPATIONAL DISEASES RESULTING SOLELY IN PHYSICAL IMPAIRMENT. THE GENERAL ASSEMBLY FURTHER DECLARES THAT BENEFITS FOR MENTAL OR EMOTIONAL STRESS SHALL BE LIMITED TO THOSE BENEFITS SPECIFIED IN THIS SUBSECTION (2) AND SUBSECTION (3) OF THIS SECTION.

(II)  THE GENERAL ASSEMBLY RECOGNIZES THAT THE COLORADO SUPREME COURT IN THE CASE OF CITY OF THORNTON AND CIRSA V. KENT REPLOGLE AND INDUSTRIAL CLAIM APPEALS OFFICE, 888 P.2d 782 (COLO. 1995) HELD THAT THE TWELVE­WEEK LIMITATION OF MENTAL IMPAIRMENT BENEFITS UNDER PARAGRAPH (b) OF THIS SUBSECTION (2) APPLIES ONLY TO PERMANENT DISABILITY BENEFITS AND NOT TO TEMPORARY DISABILITY BENEFITS. THE GENERAL ASSEMBLY, THEREFORE, FINDS, DETERMINES, AND DECLARES THAT THE PURPOSE OF CHANGING THE TERM "MEDICAL IMPAIRMENT BENEFITS" TO "MENTAL OR EMOTIONAL STRESS BENEFITS" IN PARAGRAPH (b) OF THIS SUBSECTION (2) AS AMENDED BY SENATE BILL 97­140, ENACTED AT THE FIRST REGULAR SESSION OF THE SIXTY­FIRST GENERAL ASSEMBLY, IS TO CLARIFY THAT THE TWELVE­WEEK LIMITATION ON BENEFITS UNDER PARAGRAPH (b) OF THIS SUBSECTION (2) APPLIES TO BOTH PERMANENT AND TEMPORARY DISABILITY BENEFITS UNDER ARTICLES 40 TO 47 OF THIS TITLE AND TO LEGISLATIVELY REVERSE THE DECISION IN THE CASE OF CITY OF THORNTON AND CIRSA V. KENT REPLOGLE AND INDUSTRIAL CLAIM APPEALS OFFICE, 888 P.2d 782 (COLO. 1995).

(a) (III)  A claim of mental impairment MENTAL OR EMOTIONAL STRESS must be proven by evidence supported by the testimony of a licensed physician or psychologist BASED UPON THE CRITERIA ESTABLISHED IN THE "AMERICAN PSYCHIATRIC ASSOCIATION'S DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDER", FOURTH EDITION. For purposes of this subsection (2), "mental impairment" "MENTAL OR EMOTIONAL STRESS" means a disability arising from an accidental injury OR OCCUPATIONAL DISEASE 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 ANOTHER worker in similar circumstances. A mental impairment MENTAL OR EMOTIONAL STRESS shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay­off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer.

(b) (I)  The mental impairment which MENTAL OR EMOTIONAL STRESS THAT is the basis of the claim must have arisen primarily from the claimant's then occupation and place of employment. Notwithstanding any other provision of articles 40 to 47 of this title, where a claim is by reason of mental impairment MENTAL OR EMOTIONAL STRESS, the claimant, EXCEPT AS PROVIDED IN PARAGRAPH (e) OF THIS SUBSECTION (2), shall be limited to twelve weeks of medical impairment MENTAL OR EMOTIONAL STRESS benefits, which BENEFITS shall be in an amount not less than one hundred fifty dollars per week and not more than fifty percent of the state average weekly wage. inclusive of any temporary disability benefits. This limitation shall not apply to any victim of a crime of violence.

(II)  THE MENTAL OR EMOTIONAL STRESS BENEFITS DESCRIBED IN THIS SUBSECTION (2) SHALL BE PAID IN ADDITION TO ALL MEDICAL BENEFITS RELATING TO THE MENTAL OR EMOTIONAL STRESS.

(c)  The claim of mental impairment MENTAL OR EMOTIONAL STRESS cannot be based, in whole or in part, upon facts and circumstances that are common to all fields of employment.

(d)  The mental impairment which MENTAL OR EMOTIONAL STRESS THAT is the basis of the claim must be, in and of itself, either sufficient EITHER to:

(I)  Render the employee temporarily or permanently disabled from pursuing the occupation from which the claim arose; or

(II)  to Require medical or psychological treatment.

(e) (I)  IF, AFTER EIGHT WEEKS OF RECEIVING MENTAL OR EMOTIONAL STRESS BENEFITS, THE CLAIMANT'S PHYSICIAN OR PSYCHOLOGIST TREATING THE CLAIMANT FOR MENTAL OR EMOTIONAL STRESS BELIEVES THAT THE CLAIMANT WILL NOT BE ABLE TO RETURN TO WORK AT THE CONCLUSION OF TWELVE WEEKS OF RECEIVING MENTAL OR EMOTIONAL STRESS BENEFITS DUE TO CONTINUING MENTAL OR EMOTIONAL STRESS, THEN SUCH PHYSICIAN OR PSYCHOLOGIST MAY REQUEST IN WRITING THAT THE CLAIMANT RECEIVE AN ADDITIONAL TWELVE­WEEK PERIOD OF MENTAL OR EMOTIONAL STRESS BENEFITS.

(II)  UPON RECEIPT OF A WRITTEN REQUEST FOR AN ADDITIONAL TWELVE­WEEK PERIOD OF MENTAL OR EMOTIONAL STRESS BENEFITS, THE INSURER OR SELF­INSURED EMPLOYER MAY ADMIT FOR ONE ADDITIONAL TWELVE­WEEK PERIOD OF MENTAL OR EMOTIONAL STRESS BENEFITS OR SHALL REFER THE CLAIMANT TO A PHYSICIAN OR A PSYCHOLOGIST, CHOSEN BY THE INSURER OR SELF­INSURED EMPLOYER, FOR A PSYCHOLOGICAL EXAMINATION. IF SUCH PHYSICIAN OR PSYCHOLOGIST DETERMINES THAT THE CLAIMANT IS UNABLE TO RETURN TO WORK DUE TO MENTAL OR EMOTIONAL STRESS, SUCH CLAIMANT SHALL BE ENTITLED TO ONE ADDITIONAL TWELVE­WEEK PERIOD OF MENTAL OR EMOTIONAL STRESS BENEFITS. THE TOTAL NUMBER OF WEEKS FOR MENTAL OR EMOTIONAL STRESS BENEFITS SHALL NOT EXCEED TWENTY­FOUR WEEKS.

(III)  IF THE CLAIMANT DISPUTES THE FINDING OF THE PHYSICIAN OR PSYCHOLOGIST PURSUANT TO SUBPARAGRAPH (II) OF THIS PARAGRAPH (e), THE CLAIMANT MAY REQUEST AN INDEPENDENT MEDICAL EXAMINATION FROM THE DIVISION. THE FINDING OF THE INDEPENDENT MEDICAL EXAMINER SHALL BE OVERCOME ONLY BY CLEAR AND CONVINCING EVIDENCE. A HEARING ON THIS MATTER SHALL NOT TAKE PLACE UNTIL THE FINDING OF THE INDEPENDENT MEDICAL EXAMINER SELECTED BY THE DIRECTOR HAS BEEN FILED WITH THE DIVISION.

(3) (a)  A CLAIM FOR MENTAL OR EMOTIONAL STRESS RESULTING FROM A PHYSICAL INJURY OR OCCUPATIONAL DISEASE MUST BE PROVEN BY EVIDENCE SUPPORTED BY THE TESTIMONY OF A LICENSED PHYSICIAN OR PSYCHOLOGIST BASED UPON THE CRITERIA ESTABLISHED IN THE "AMERICAN PSYCHIATRIC ASSOCIATION'S DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDER", FOURTH EDITION. FOR PURPOSES OF THIS SUBSECTION (3), "MENTAL OR EMOTIONAL STRESS RESULTING FROM A PHYSICAL INJURY OR OCCUPATIONAL DISEASE" MEANS A PSYCHOLOGICAL DISABILITY ARISING FROM A PHYSICAL INJURY OR OCCUPATIONAL DISEASE ARISING OUT OF AND IN THE COURSE AND SCOPE OF EMPLOYMENT WHEN THE PHYSICAL INJURY OR OCCUPATIONAL DISEASE CAUSES PERMANENT PHYSICAL IMPAIRMENT THAT THEN DIRECTLY CAUSES A PERMANENT PSYCHOLOGICAL DISABILITY. THE MERE OCCURRENCE OF A PHYSICAL INJURY OR OCCUPATIONAL DISEASE ARISING OUT OF AND IN THE COURSE AND SCOPE OF EMPLOYMENT SHALL NOT CONSTITUTE, IN AND OF ITSELF, MENTAL OR EMOTIONAL STRESS RESULTING FROM PHYSICAL INJURY OR OCCUPATIONAL DISEASE.

(b)  NOTWITHSTANDING ANY OTHER PROVISION OF ARTICLES 40 TO 47 OF THIS TITLE, WHERE A CLAIM IS BY REASON OF MENTAL OR EMOTIONAL STRESS RESULTING FROM A PHYSICAL INJURY OR OCCUPATIONAL DISEASE, THE CLAIMANT, EXCEPT AS PROVIDED IN PARAGRAPH (d) OF THIS SUBSECTION (3), SHALL BE LIMITED TO TWELVE WEEKS OF MENTAL OR EMOTIONAL STRESS BENEFITS, WHICH BENEFITS SHALL BE IN AN AMOUNT NOT LESS THAN ONE HUNDRED FIFTY DOLLARS PER WEEK AND NOT MORE THAN FIFTY PERCENT OF THE STATE AVERAGE WEEKLY WAGE. THIS LIMITATION SHALL NOT APPLY TO ANY VICTIM OF A CRIME OF VIOLENCE OR THE VICTIM OF A PHYSICAL INJURY OR OCCUPATIONAL DISEASE THAT CAUSES NEUROLOGICAL BRAIN DAMAGE. THE MENTAL OR EMOTIONAL STRESS BENEFITS DESCRIBED IN THIS SUBSECTION (3) SHALL BE PAID IN ADDITION TO TEMPORARY DISABILITY BENEFITS FOR THE PHYSICAL INJURY OR OCCUPATIONAL DISEASE, PERMANENT DISABILITY BENEFITS PAID FOR THE PHYSICAL INJURY OR OCCUPATIONAL DISEASE, AND ALL MEDICAL BENEFITS RELATING TO THE PHYSICAL INJURY AND MENTAL OR EMOTIONAL STRESS.

(c)  THE CLAIM FOR MENTAL OR EMOTIONAL STRESS RESULTING FROM PHYSICAL INJURY OR OCCUPATIONAL DISEASE THAT IS THE BASIS OF THE CLAIM MUST BE, IN AND OF ITSELF, SUFFICIENT EITHER TO:

(I)  RENDER THE EMPLOYEE TEMPORARILY OR PERMANENTLY DISABLED FROM PURSUING THE OCCUPATION FROM WHICH THE CLAIM AROSE; OR

(II)  REQUIRE MEDICAL OR PSYCHOLOGICAL TREATMENT.

(d) (I)  IF, AFTER EIGHT WEEKS OF RECEIVING MENTAL OR EMOTIONAL STRESS BENEFITS, THE CLAIMANT'S PHYSICIAN OR PSYCHOLOGIST TREATING THE CLAIMANT FOR MENTAL OR EMOTIONAL STRESS BELIEVES THAT THE CLAIMANT WILL NOT BE ABLE TO RETURN TO WORK AT THE CONCLUSION OF TWELVE WEEKS OF RECEIVING MENTAL OR EMOTIONAL STRESS BENEFITS DUE TO CONTINUING MENTAL OR EMOTIONAL STRESS, THEN SUCH PHYSICIAN OR PSYCHOLOGIST MAY REQUEST IN WRITING THAT THE CLAIMANT RECEIVE AN ADDITIONAL TWELVE­WEEK PERIOD OF MENTAL OR EMOTIONAL STRESS BENEFITS.

(II)  UPON RECEIPT OF A WRITTEN REQUEST FOR AN ADDITIONAL TWELVE­WEEK PERIOD OF MENTAL OR EMOTIONAL STRESS BENEFITS, THE INSURER OR SELF­INSURED EMPLOYER MAY ADMIT FOR ONE ADDITIONAL TWELVE­WEEK PERIOD OF MENTAL OR EMOTIONAL STRESS BENEFITS OR SHALL REFER THE CLAIMANT TO A PHYSICIAN OR A PSYCHOLOGIST, CHOSEN BY THE INSURER OR SELF­INSURED EMPLOYER, FOR A PSYCHOLOGICAL EXAMINATION. IF SUCH PHYSICIAN OR PSYCHOLOGIST DETERMINES THAT THE CLAIMANT IS UNABLE TO RETURN TO WORK DUE TO MENTAL OR EMOTIONAL STRESS, SUCH CLAIMANT SHALL BE ENTITLED TO ONE ADDITIONAL TWELVE­WEEK PERIOD OF MENTAL OR EMOTIONAL STRESS BENEFITS. THE TOTAL NUMBER OF WEEKS FOR MENTAL OR EMOTIONAL STRESS BENEFITS SHALL NOT EXCEED TWENTY­FOUR WEEKS.

(III)  IF THE CLAIMANT DISPUTES THE FINDING OF THE PHYSICIAN OR PSYCHOLOGIST PURSUANT TO SUBPARAGRAPH (II) OF THIS PARAGRAPH (d), THE CLAIMANT MAY REQUEST AN INDEPENDENT MEDICAL EXAMINATION FROM THE DIVISION. THE FINDING OF THE INDEPENDENT MEDICAL EXAMINER SHALL BE OVERCOME ONLY BY CLEAR AND CONVINCING EVIDENCE. A HEARING ON THIS MATTER SHALL NOT TAKE PLACE UNTIL THE FINDING OF THE INDEPENDENT MEDICAL EXAMINER SELECTED BY THE DIRECTOR HAS BEEN FILED WITH THE DIVISION.

SECTION 2.  8­42­107 (7), Colorado Revised Statutes, 1986 Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

8­42­107.  Permanent partial disability benefits ­ schedule ­ medical impairment benefits ­ how determined. (7) (c)  MENTAL OR EMOTIONAL STRESS SHALL BE COMPENSATED PURSUANT TO SECTION 8­41­301 (2) OR (3) AND SHALL NOT BE COMBINED WITH A SCHEDULED OR NONSCHEDULED INJURY IN ORDER TO ALLOW THE CLAIMANT TO RECEIVE MEDICAL IMPAIRMENT BENEFITS PURSUANT TO SUBSECTION (8) OF THIS SECTION.

SECTION 3.  Effective date ­ applicability. This act shall take effect July 1, 1997, and shall apply to injuries or occupational diseases occurring on or after said date.

SECTION 4.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.