Academic journal article Journal of Risk and Insurance

Workers Compensation Statute Unconstitutional to the Extent It Requires Live Testimony in Claims of Mental Impairment but Accepts Documentary Evidence Alone in Cases of Physical Impairment

Academic journal article Journal of Risk and Insurance

Workers Compensation Statute Unconstitutional to the Extent It Requires Live Testimony in Claims of Mental Impairment but Accepts Documentary Evidence Alone in Cases of Physical Impairment

Article excerpt

Esser v. Industrial Claim Appeals Office of the State of Colorado--Colo.--, 8 P.3d 1218 (Cob. App., 2000, modified on denial of rehearing, March 23, 2000, cert. granted, August 21, 2000).

Colorado's workers compensation statute provides that, where a worker claims injury and mental impairment, this must be "proven by evidence supported by the testimony of a licensed physician or psychologist." Mental impairment is defined as existing where there is no evidence of physical injury to the claimant. However, for claims of physical injury, a worker may prove up the claim without use of live expert testimony through use of medical records and other documentary evidence. A claimant asserting mental impairment challenged the statute's treatment as unfairly un even regarding mental and physical injury claims. The Colorado Court of Appeals agreed, holding that differential evidentiary treatment of the two sorts of claims was violation of the equal protection of laws guaranteed in the state constitution. The court of appeals found that there was no rational reason to require live testimony for mental impairment claims but to deem documentary proof sufficient for physical injury claims. 8 P.3d at 12 21-23. The court of appeals did, however, stress that the legislature was within its prerogatives in requiring sufficient evidence of mental impairment; the legislature erred in resolutely requiring different minimum forms evidence for different injury claims. …

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