The claimant was employed as a Continuing Care Assistant and was assigned to Colorado Mental Health Hospital. On the date of the claimant’s alleged injury, she was assigned to monitor a patient who was classified as a suicide risk and had a known history of violence. When the claimant entered the room, the patient exposed himself, masturbating in front of the claimant and attempting to grab the claimant’s breast. The claimant testified that she was informed that such incidents were expected for employees at the Colorado Mental Health Hospital.
The claimant presented an inconsistent story, stating that the patient did not grab her breast in her initial police report and initial testimony at hearing but then suggesting that the patient did grab her breast when the claimant was cross-examined at hearing. Based on the evidence provided, the ALJ was not convinced that the claimant suffered any physical injury from the alleged incident.
The claimant conceded that she had not sought any medical treatment following the alleged incident. The claimant testified that she was seen by a licensed clinical social worker with whom she had previously had an established counseling relationship for post-partum depression and anxiety suffered in 2022. The claimant did not present any medical evidence in support of this contention. The ALJ found there to be no credible medical evidence or persuasive testimony in support of the claimant’s claim for a mental injury.
Under Colorado law, there is a heightened standard of proof that a claimant must demonstrate to establish the compensability of a mental impairment absent any accompanying physical stimulus. Per C.R.S. §8-41-301(2)(a), “[a] claim of mental impairment must be proven by evidence supported by the testimony of a licensed psychiatrist or psychologist.” Additionally, a claim for mental impairment without any physical injury must result from an “event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances” to be compensable. C.R.S. § 8-41-301(3)(b)(1).
State of Colorado
The ALJ cited to the plain language of the above statutory provision requiring “evidence supported by the testimony of a licensed psychiatrist or psychologist” in ruling against the compensability of this claim. C.R.S. § 8-41-301(2)(a). The claimant relied on admitted medical evidence from a licensed clinical social worker. The courts have previously held that testimony of a social worker is insufficient to meet the statutory burden. The claimant did not present medical evidence or testimony from a licensed psychiatrist or psychologist as required by C.R.S. § 8-41-301(2)(a). As such, the ALJ found that the claimant did not meet the statutory requirements to demonstrate a compensable mental impairment.
While the ALJ identified that the patient exhibited repugnant and shocking behavior towards her, the claimant did not present testimony that demonstrated that the event was outside of a worker’s usual experience for employees in her position. In fact, the claimant conceded in her testimony that she was told such incidents were expected for employees at the Colorado Mental Health Hospital. The ALJ found that the claimant failed to present persuasive testimony that she was involved in a psychologically traumatic event that was outside of a worker’s usual experience as required by C.R.S. § 8-41-301(3)(b)(1). As such, the claimant failed to meet the heightened burden of proof required for a claim of mental impairment absent any accompanying physical injury.
The ALJ denied and dismissed the claim as the claimant failed to meet the statutory requirements of C.R.S. § 8-41-301(2) and § 8-41-301(3)(b)(1).
Lopez v. Medical Edge Recruitment, LLC, W.C. No. 5-277-242 (March 28, 2025).
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