In re Claim of Christensen, 042121 COWC, 5-112-166-001

Docket NºW.C. 5-112-166-001
Case DateApril 21, 2021
W.C. No. 5-112-166-001
Colorado Workers Compensation
Industrial Claim Appeals Office
April 21, 2021
          BOESEN LAW LLC, Attn: BRADLEY UNKELESS ESQ, (For Claimant)           RITSEMA & LYON PC, Attn: DOUGLAS L STRATTON ESQ, C/O: ANDREW R BANTHAM ESQ, (For Respondents)          FINAL ORDER          The claimant seeks review of an order of Administrative Law Judge Kabler (ALJ) dated October 13, 2020, that determined her claim for mental impairment is subject to the twelve (12) week limitation on medical impairment benefits as set forth in § 8-41-301(2)(b), C.R.S. We affirm.          This matter went to hearing on whether the claimant was a “victim of a crime of violence” thereby exempting her from the 12-week limitation on medical impairment benefits under § 8-41-301(2)(b), C.R.S. After the hearing, the ALJ made findings and conclusions that are summarized below.          The claimant works for the respondent employer as an oncology nurse. The claimant sustained an admitted permanent mental impairment arising out of and in the course of her employment with the employer.          On June 22, 2019, an incident occurred at University of Colorado Health, in which an oncology patient was shot in the face by a family member. The assailant immediately committed suicide in the patient’s room by shooting himself in the head. The patient did not immediately die from the gunshot wound. The claimant was working as a nurse and was one of the first people to enter the patient’s room with the crash cart to initiate efforts to save the patient’s life After approximately 30 minutes, however, the patient died.          The parties stipulated to the following facts:
a. The incident that occurred on June 22, 2019, was a crime of violence;
b. When the claimant entered the room, the perpetrator of the crime was deceased;
c. What the claimant saw when she entered the room was a psychologically traumatic event;
d. As a result of this psychologically traumatic event, the claimant suffered post-traumatic stress disorder (PTSD), which resulted in permanent mental impairment;
e. The claimant experienced no physical injuries as a result of the June 22, 2019, incident.
         On April 3, 2020, the claimant was placed at maximum medical improvement with a 7% whole person impairment rating for mental impairment. The respondents filed a Final Admission of Liability on April 10, 2020, admitting to temporary total disability and temporary partial disability benefits.          Since the Workers’ Compensation Act does not define the word “victim” and the ALJ held that the word “victim” was “not sufficiently clear by itself to resolve the issue,” he determined that he must begin by applying the plain and ordinary meaning of the term. Citing to the definition of the term “victim” as used in various dictionaries, the ALJ distinguished between “direct victim” and “indirect victim.” The ALJ cited to the 5th and 6th editions of Black’s Law Dictionary and Merriam-Webster as supporting the “direct victim” definition or “the person who is the object of a crime or tort, as the victim of a robbery is the person robbed.” Conversely, the ALJ held that the 10th edition of Black’s Law Dictionary, Ballentine’s Law Dictionary, and the Cambridge Dictionary support the “indirect victim” definition, which means “a person who suffered harm from a crime committed against another person.”          However, the ALJ held that the General Assembly’s use of the word “victim” contained in § 8-41-301(2)(b), C.R.S. provided a better indication of the meaning of the term. Since the word “victim” is used twice in the statute, he concluded that the “direct victim” construction would result in a harmonious meaning:
Section 8-41-301(2)(b) uses the term “victim” twice, exempting from the twelve-week limitation a “victim of a crime of violence” and a “victim of a physical injury or occupational disease that causes neurological brain damage....” When discussing § 8-41-301(2)(b), the Colorado Supreme Court explained the section as follows: “[A] worker is compensated for mental impairment with permanent partial disability benefits for no more than twelve weeks unless she is the victim of a violent crime or suffers from a ‘physical injury or occupational disease that causes neurological brain damage.’” Dillard v. Industrial Claim Appeals Office of State of Colorado, 134 P.3d 407, 441 (Colo. 2006). The Supreme Court’s characterization indicates the meaning of “victim” in the context of a “physical injury or occupational disease” is the object or “direct victim” of such injury or disease (i.e. - the person who sustains the physical injury or occupational disease).
The rules of statutory construction require that if “separate clauses in the same statutory scheme may be harmonized by one construction, but would be antagonistic under a different construction, [courts] should adopt that construction which results in harmony rather than that which produces inconsistency.” Colorado-Ute Elec. Ass’n, Inc. v. Public Utilities Comm’n of State of Colo., 760 P.2d 627, 635 (Colo. 1988). The ALJ must, therefore, presume the General Assembly intended the term “victim” to have the same meaning when referring to a “victim of a crime of violence” as when referring to the “victim of a physical injury or occupational disease” within the same sentence. The interpretation that gives a consistent and harmonious meaning to the term “victim” is that it means the person upon whom a physical injury, occupational disease, or crime of violence was inflicted (i.e. - the “direct victim”).
         The ALJ also cited to Colorado’s Criminal Code and other statutes where the term is not defined to support the definition of the term “victim” in § 8-43-301(2)(b), C.R.S. as being the “direct victim.” He held that these statutes clearly and unambiguously used the undefined term “victim” to refer to the person against whom the criminal act is perpetrated. See § 18-3-102, C.R.S. (“victim” to refer to the person against whom the crime was directly perpetrated (i.e. - the person murdered); § 18-3-107(1), C.R.S. (First degree murder of a peace officer, fire fighter, or emergency medical service provider); § 18-3-202(1)(e) and (e.5), C.R.S. (Assault in the first degree); § 18-3-301, C.R.S. (First degree kidnapping); § 18-6.5-103(3), (4) & (5), C.R.S. (Crimes against at-risk persons). The ALJ further held that...

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