author: MANNHEIMER, Judge. MANNHEIMER, Judge,

text:
    Alexander Joseph KELLER, Appellant, v. STATE of Alaska, Appellee.
    No. A-8544.
    Court of Appeals of Alaska.
    Feb. 6, 2004.
    Michele Power, Angstman Law Office, Be-thel, for the Appellant.
    Jean E. Seaton, Assistant District Attorney, Gregg Olson, District Attorney, Bethel, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Alexander Joseph Keller was charged in the Bethel district court with the offense of driving while intoxicated. Keller’s father was a bailiff for the Bethel court. Bethel Magistrate Craig R. McMahon and the two resident judges in Bethel, Superior Court Judges Dale O. Curda and Leonard R. Deva-ney, all recused themselves because of their association with Keller’s father. Keller’s case was ultimately assigned to a Fairbanks judge, District Court Judge Raymond M. Funk. The question presented in this appeal is whether these judicial recusals and reassignments affected the calculation of the time limit for bringing Keller to trial under Alaska’s speedy trial rule, Criminal Rule 45.

Criminal Rule 45 states that a defendant must be brought to trial within 120 days, not counting the various excluded periods defined in subsection (d) of the rule. In the present case, the Rule 45 clock was triggered on July 5, 2002, when the criminal charge was served on Keller. Thus, July 6th was Day 1 for Rule 45 purposes.

Keller and the State agree that, for purposes of deciding this ease, the Rule 45 clock stopped on November 6, 2002 — the day on which Keller filed his motion to dismiss the criminal charge because of the asserted violation of Criminal Rule 45. November 6th was Day 124.

Both parties further agree that, aside from the recusals of the three judges and the ensuing judicial reassignments, no .events tolled the running of Rule 45 between July 6th and November 6th. Thus, the question is whether these judicial recusals tolled the running of Rule 45 for four or more days. If so, then Keller was brought to trial within the 120 days specified in the rule. If not, then the charge against Keller must be dismissed with prejudice, pursuant to Rule 45(g).

The State offers two alternative rationales for tolling Rule 45 on account of the three judicial recusals. First, the State argues that the time attributable to these recusals is an excluded period under Rule 45(d)(1), the portion of the rule that excludes any “period of delay resulting from other proceedings concerning the defendant”. Second, the State argues that the time attributable to the three recusals can be excluded under Rule 45(d)(7), the residual clause that allows a court to exclude a period of time “for good cause”, even when that period of time is not excluded under any other provision of Rule 45(d).

We do not reach the State’s first argument (that the time attributable to the judicial recusals should be excluded under Rule 45(d)(1)). Rather, we decide Keller’s case on an alternate ground. We conclude that when (as in Keller’s case) all of the judges who reside in the place of venue specified by Criminal Rule 18 are disqualified, thus requiring the assignment of a judge from another community, this situation constitutes “good cause” for a delay of a criminal trial under Rule 45(d)(7). We further conclude that, in Keller’s case, at least four days of delay can properly be attributed to the fact that his case had to be reassigned to a judge from outside Bethel. This means that Keller was brought to trial within the time limits of Rule 45.

A judge’s duty of recusal under AS 22.20.020 and Canons 2 and S of the Alaska Code of Judicial Conduct: instances of actual partiality, and instances which create a reasonable appearance of partiality

One of the foundations of our criminal justice system is the requirement that fair and unbiased judges preside over litigation. This requirement is codified in AS 22.20.020(a)(9), which declares that a judge “[shall] not act in a [legal] matter” if the judge concludes “for any reason” that they can not render “a fair and impartial decision” in that matter.

Although this precept is sometimes referred to as the “right to an impartial tribunal”, the requirement of a fair and unbiased judge is more than simply a right enjoyed by" the parties. When judges conclude that it is impossible for them to be fair and impartial in a particular case, they have a duty to recuse themselves from that case- — even when no party to the litigation has raised the issue. See AS 22.20.020(c), which envisions judicial disqualification “on the [judicial] officer’s own motion”. Moreover, this duty of recusal binds the judge even when the parties announce that they are willing to ignore the judge’s inability to be fair arid impartial. Canon 3F(1) of the Alaska Code of Judicial Conduct declares:

A judge shall not seek or accept a waiver of disqualification when the judge has a personal bias or' prejudice concerning a party or a lawyer [involved in the case, or] when, for any other reason, the judge believes that he or she cannot be fair and impartial....

In addition, a judge’s duty of recusal encompasses not only those cases in which the judge actually can not be fair and unbiased, but also those cases in which the judge’s participation would lead reasonable people to question the fairness of the proceedings. See Amidon v. State, 604 P.2d 575, 578 (Alaska 1979), which holds that judges must disqualify themselves “in [any] proceeding in which [their] impartiality might reasonably be questioned”.

The Amidon decision was based on former Alaska Judicial Canon 3(C)(1). However, this same precept — disqualification or recusal based on a reasonable appearance of partiality — is codified in Canons 2A and 3E of Aas-ka’s current Code of Judicial Conduct. Judicial Canon 2A states that a judge shall “avoid impropriety and the appearance of impropriety”. The Commentary to Canon 2A states that the test for gauging an “appearance of impropriety” is “whether the [judge’s] conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired”. Judicial Canon 3E(1) echoes this rule: “Unless all grounds for disqualification are waived as permitted by [Canon] 3F, a judge shall disqualify himself or herself in [any] proceeding in which the judge’s impartiality might reasonably be questioned”.

The counter-balance: a judge’s duty to carry out their judicial function if there is no valid ground for disqualification

Athough the law requires judges to recuse themselves (or to grant a party’s request for disqualification) when they conclude that they can not be fail' and impartial, the law at the same time requires judges to remain assigned to the case, and to carry out them normal judicial functions, when there is no valid ground for disqualification. As the supreme court stated in Amidon, “[A] judge has as great an obligation not to disqualify himself, when there is no occasion to do so, as he has [an obligation to disqualify himself] in the presence of valid reasons.” 604 P.2d at 577. This Court explained this counterbalancing duty in Feichtinger v. State:

Judges will frequently be assigned cases involving unpleasant issues and difficult problems. Often litigants and their attorneys will be particularly vexatious. In many cases, publicity adverse to the judge is virtually certain no matter what decision he or she reaches. In such cases, judges insufficiently attuned to their responsibilities might readily welcome a baseless request for recusal as an escape from a difficult case. To surrender to such a temptation would justly expose the judiciary to public contempt based on legitimate public concern about judicial integrity and courage. While we agree that judges must avoid the appearance of bias, it is equally important to avoid the appearance of shirking responsibility.

779 P.2d 344, 348 (Alaska App.1989).

Why we conclude that the four-day delay in bringing Keller to trial is excused under Rule (d)(7)

As we have already explained, Keller’s case was assigned to three different Bethel judges. One after another, each judge recused himself because of his professional relationship with Keller’s father. Ultimately, Keller’s case had to be assigned to a judge from outside the Bethel community (■ie., a judge from Fairbanks).

For purposes of calculating a defendant’s speedy trial deadline, the “normal” excluded periods are codified in Criminal Rule 45(d)(l)-(6). None of these six provisions expressly includes the time attributable to a judicial disqualification.

As explained in the concurring opinion, there is reason to believe that a judicial recusal qualifies as a “proceeding concerning the defendant” under Rule 45(d)(1). However, rather than decide that point of law, we conclude instead that the series of judicial recusals in Keller’s case constitutes “good cause” for delay of Keller’s trial under Rule 45’s residual clause, (d)(7).

Any judge, but especially judges in smaller communities, will from time to time be assigned to a case which involves people whom the judge knows. In these situations, a judge must not only gauge their personal feelings about the people involved in the litigation, but must also gauge how the community would likely perceive the judge’s decision to remain on the case.

This can be a delicate matter. For instance, in Keller’s case, the underlying problem was that Keller’s father worked as a bailiff for the court. The first three judges assigned to Keller’s case (the three judges who subsequently recused themselves) had to assess not only whether they personally believed that they could be fair, but also such imponderables as whether rulings favorable to Keller would be perceived as favoritism, or whether rulings unfavorable to Keller would be perceived as the judge’s effort to placate the State, “bending over backwards” not to demonstrate favoritism.

When a judge is assigned to a case long in advance of trial, the judge may consider these issues and initially conclude that it is proper for them to participate in the case, only to change their mind as the approaching trial date forces a sharper consideration of the potential appearance of partiality. And obviously, when a judge is assigned to a criminal case following the recusal or disqualification of a prior judge, that second judge would have no occasion to consider the issue of recusal until the judge knew that they were assigned to the case.

Here, three judges recused themselves, one by one, until it was necessary to assign a Fairbanks judge to Keller’s case. This Fairbanks judge (District Court Judge Raymond M. Funk) assumedly already, had his own trial calendar. The addition of Keller’s case meant that, unexpectedly, Judge Funk’s calendar had to be adjusted to accommodate a criminal trial that had to be conducted in another city.

In analogous circumstances, we have held that the Rule 45 calculation should presumptively be extended by 30 days. In Sundberg v. State, 667 P.2d 1268 (Alaska App.1983), we held that 30 days should be added to a defendant’s Rule 45 calculation when the defendant’s case is returned to the jurisdiction of the trial court following an interlocutory appeal:

Common sense leads us to conclude that a trial court cannot immediately plug a case into its trial calendar after a remand. Some time is needed to ensure that the remanded case is worked into the trial calendar; the calendar may already contain a number of criminal cases equally entitled to consideration under Criminal Rule 45. In addition, the prosecution will need a reasonable time to [marshal] its witnesses, whether local or out of state, and adjust the remanded case to its own calendar of criminal cases, some of which may have Criminal Rule 45 claims.... [A] reasonable time should be allowed the court and prosecution to get the case back on the calendar before Criminal Rule 45 begins to run again after remand from the appellate court.

Id. at 1270. We held that, under these circumstances, 30-days should presumptively be added to the Rule 45 calculation (ie., even in the absence of specific proof that a 30 day delay was required). Id.

Similarly, in Petersen v. State, 838 P.2d 812 (Alaska App.1992), we held that 30 days should presumptively be added to the Rule 45 calculation when a defendant entered a no contest plea but then, several months later, withdrew the plea and demanded a trial. We concluded that this situation was like the one presented in Sundberg, because “it would be unreasonable to expect the trial court, upon reinstatement of active prosecution, to be capable of immediately reinstating [the defendant’s] case on the trial calendar”. Id: at 815.

Of course, Sundberg and Petersen involved delays that were attributable to the defendant’s, actions. Thus, even when events unexpectedly place a criminal trial on a judge’s calendar, one could argue that the policy of Sundberg and Petersen should not apply when those events are not set in motion by the defendant.

Keller, in fact, makes this very argument. He asserts that Rule 45(d)(7) should not be construed to exclude periods of time that are “out of [a defendant’s] control”. We interpret Keller to be arguing, that Rule 45(d)(7) should not exclude a period of time unless that period of time is attributable to the defendant’s act or request.

But several provisions of Rule 45(d) exclude periods of time that are not attributable to events that the defendant has set in motion. For instance, Rule 45(d)(1) expressly excludes the time attributable to “examinations and hearings on competency” as well as “the period during which the defendant is incompetent to stand trial”. It is true that examinations and hearings on competency are sometimes initiated by the defendant, but they can also be instituted by the State— and, more importantly for present purposes, they can be instituted by the court acting sua sponte. In Burks v. State, 748 P.2d 1178, 1180 (Alaska App.1988), this Court held that “[regardless of whether] the issue of [the defendant’s] competency was raised by his court-appointed counsel [or] by the [trial] court sua sponte, ... the time necessary to determine [the defendant’s] competency was properly excluded” from the Rule 45 calculation.

Rule 45(d)(1) likewise excludes the delay attributable to “trial of other charges” — ie., other criminal proceedings brought by the State (or, potentially, by another government). Here again, Rule 45(d)(1) exempts time that is not attributable to actions or proceedings initiated by the defendant.

See also Rule 45(d)(3), which allows the prosecution to seek additional time to bring the defendant to trial when material evidence is unavailable despite the State’s diligent efforts, or when the State’s case is of exceptional complexity. And see Rule 45(d)(6), which excludes the time attributable to the defendant’s detention in another jurisdiction, provided the State has made diligent efforts to secure the defendant’s timely return to Alaska.

We therefore conclude that even though Keller did not initiate the three judges’ recu-sals (ie., even though the three judges re-cused themselves sua sponte rather than in response to defense motions challenging the judges’ ability to be fair), this fact does not bar those judicial recusals from constituting “good cause” under Rule 45(d)(7) for the delay in bringing Keller to trial.

Keller also argues that, if we construed Rule 45(d)(7) to excuse the delay in bringing him to trial, we would “effectively extend[] the meaning of ‘good cause’ to [include] periods of delay resulting from scheduling errors on the part of the court”. But it is no “scheduling error” when judicial officers conclude that they must recuse themselves because they are actually biased, or because their participation in the case would create a reasonable perception of bias.

Finally, Keller argues that the “good cause” provision of Rule 45(d)(7) should not apply to his case because the court system should be prepared for judicial recusals and should have procedures in place to ensure prompt re-assignment of a defendant’s case in such circumstances, so that the trial can still take place within the normal time limits of Rule 45.

Keller points out that in Peterkin v. State, 543 P.2d 418 (Alaska 1975), and again in DeMille v. State, 581 P.2d 675 (Alaska 1978), the supreme court ruled that trial courts are under a duty to “[establish] safeguards to guarantee that pre-trial procedures will be carefully monitored and that failsafe techniques [will be instituted that] will bring to light [any] cases which approach the 120-day limit.” Keller further notes that, in De-Mille, the supreme court apparently rejected the notion that delays in holding criminal trials could be justified by court system errors in scheduling cases.

Based on Peterkin and DeMille, Keller argues that a court can no longer rely on judicial “mistakes” to justify the delay in bringing a defendant to trial. In particular, Keller contends that he “should not bear the burden of the [recusing] judges’ mistakes” in his case.

We again must disagree with Keller’s characterization of what went on here. Judges’ decisions to recuse themselves are not “mistakes”. Moreover, as we have already noted, a judge has no occasion to decide whether they can ethically preside over a particular case until that case is assigned to them. Thus, the second and third judges assigned to Keller’s case did not need to think about the question of recusal until a large portion of the time allowed by Rule 45 had already elapsed.

If we construed Rule 45(d) as Keller suggests, so that the speedy trial clock continued to run during the time attributable to a judge’s recusal, this would pressure judges to ignore good reasons for their recusal. In Keller’s case, for instance, the second and third judges assigned to his ease might reasonably have feared that their decision to recuse themselves would ultimately result in a violation of Rule 45 — meaning that the charges against Keller would be dismissed with prejudice.

It is often difficult enough for judges to decide whether they should recuse themselves. We must not construe Rule 45 in a way that makes dismissal of criminal charges the consequence of a judge’s decision to fulfill their ethical duty.

It may be true that the court system should have procedures in place to assure prompt re-assignment of criminal eases when judges recuse themselves. Further, in multi-judge court locations, .if a judge’s recusal were announced early enough in the litigation, the recusal might occasion no more than one day’s delay — the time needed to issue the recusal decision and then to assign a new judge, one who had plenty of time to work the new case into their calendar.

But Keller’s case is considerably different. Here, three separate local judges recused themselves, making it necessary to summon a judge from Fairbanks to preside over Keller’s case. Leaving aside the issue of whether Rule 45 should be tolled for all judicial recusals, we are confident that whenever, as here, judicial recusals make it necessary to assign a defendant’s case to a judge from another location, the resulting delay constitutes “good cause” under Rule 45(d)(7).

In Sundberg and in Petersen, we held that an additional 30 days should presumptively be added to the Rule 45 calculation when a criminal case is unexpectedly inserted into a judge’s trial calendar following the resolution of an interlocutory appeal or following the defendant’s decision to withdraw a previous guilty plea. We need not decide whether to follow the same 30-day rale in situations, like the one presented in Keller’s ease' — because Keller’s case involves a delay of only four days, and because there was a manifest need for at least a four-day delay after the three Bethel judges recused themselves and a Fairbanks judge had to be assigned to Keller’s case.

Conclusion

We hold that the four-day delay in bringing Keller to trial is excused under Rule 45(d)(7). Accordingly, the judgement of the district court is AFFIRMED.

MANNHEIMER, Judge,

concurring.

I write separately to point out that the Alaska Supreme Court has already held that defense motions for judicial disqualification are excluded from the speedy trial calculation under Rule 45(d)(1). I also wish to explain why there is reason to believe that the time attributable to a judicial recusal — i.e., a judicial disqualification that is imposed sua sponte rather than in response to a request from a party — may also be excluded from the speedy trial calculation under Criminal Rule 45(d)(1).

The Alaska Supreme Court has already held that a defendant’s peremptory challenge of a judge, and a defendant’s challenge for cause against a judge, are both “proceedings concerning the defendant” within the meaning of Criminal Rule 4-5 (d)(D

Before addressing the question of whether a judicial recusal constitutes a “proceeding concerning the defendant” for purposes of Rule 45(d)(1), I turn first to a related question: Does a defense challenge to a judicial officer (either a challenge for cause or a peremptory challenge) constitute a “proceeding concerning the defendant” for purposes of Rule 45(d)(1)?

Criminal Rule 45(d)(1) states that the Rule 45 clock is tolled during “[t]he period of delay resulting from other proceedings concerning the defendant”. In his brief to this Court, Keller argues that the potential bias or partiality of the trial judge does not “concern” the defendant, at least within the-meaning of that phrase in Rule 45(d)(1). Keller argues that “a judge’s recusal [affects] the defendant [only] to the same extent that it [affects] the state”, and that “[i]t would strain the meaning of [Rule 45(d)(1) ] to argue that a judge’s recusal ‘concerns’ the defendant under this provision”.

No Alaska appellate decision explicitly answers the question of whether a judge’s sua sponte disqualification is a “proceeding concerning the defendant” for purposes of Rule 45(d)(1). However, the Alaska Supreme Court’s decision in Peterson v. State, 562 P.2d 1350 (Alaska 1977), implicitly rests on the proposition that a defense challenge to a judicial officer is a “proceeding concerning the defendant” under Rule 45(d)(1).

The defendant in Peterson was arrested for murder on December 23, 1974. (At that time, a defendant’s arrest triggered the running of Rule 45.) Peterson’s trial was scheduled for May 8, 1975. However, on May 8th, Peterson initiated a series of challenges (both challenges for cause and peremptory challenges) to the judges assigned to his case.

First, Peterson challenged Superior Court Judge Eben Lewis for cause. Judge Lewis denied that challenge, and his decision was then reviewed and affirmed by Superior Court Judge Peter Kalamarides. After Peterson lost his challenge for cause, he filed a peremptory challenge of Judge Lewis. Judge Lewis granted this peremptory challenge, and the case was re-assigned to Superior Court Judge Ralph Moody. But as soon as Judge Moody took over the case, Peterson challenged Judge Moody for cause. Judge Moody denied that challenge, and his decision was then reviewed and affirmed by Superior Court Judge Seaborn Buekalew. Again, after losing the challenge for cause, Peterson filed a peremptory challenge of Judge Moody. But Judge Moody denied that challenge because Peterson had previously exercised a peremptory challenge against Judge Lewis. (Under Alaska Criminal Rule 25(d), a defendant is entitled to but one peremptory challenge).

Following this string of judicial challenges, Peterson filed a motion to dismiss the charges against him for violation of his right to a speedy trial under Rule 45. When this motion was denied, Peterson filed motions to dismiss his indictment because of various alleged improprieties at the grand jury proceedings, and because of pre-indictment delay. On June 25, 1975, when the superior court ruled against Peterson on all these motions, Peterson entered no contest pleas to the charges against him, preserving his right to raise all of these issues on appeal — and, in particular, his Rule 45 claim.

In other words, Peterson’s trial was scheduled for May 8, 1975, but the trial was delayed first by a series of judicial challenges and, later, by a series of motions seeking dismissal of the charges. The importance of this procedural history becomes apparent when one examines the supreme court’s discussion of Peterson’s Rule 45 claim.

There were 136 days between Peterson’s arrest on December 23, 1974, and the scheduled trial date of May 8,1975. The supreme court declared that the issue to be decided in Peterson’s case was whether there was a valid excuse for scheduling Peterson’s trial “136 days after Peterson’s arrest”. That is, the supreme court’s Rule 45 calculation is premised on the conclusion that the Rule 45 clock stopped running on May 8th. And this would be true only if Peterson’s series of judicial challenges tolled the running of Rule 45.

The supreme court did not specify why they concluded that Peterson’s four judicial challenges (two for cause, and two peremptory) tolled the running of the rule, but there are only two possibilities: either the court considered these challenges to be “proceedings concerning the defendant” under Rule 45(d)(1), or the court believed that these challenges constituted “other ... good cause” under Rule 45(d)(7).

I believe that the supreme court’s silence on this issue is a fair indication that they believed Peterson’s challenges were covered by (d)(1). The supreme court has been cautious when interpreting (d)(7)’s residual clause, out of concern that an overbroad construction of (d)(7) would defeat the policy of the speedy trial rule. If the supreme court had believed that it was necessary to invoke subsection (d)(7) to make May 8th the stopping date in Peterson’s case, one would expect the court to have discussed this issue explicitly. Instead, the court adopted the May 8th date with essentially no discussion.

From all of this, I conclude that the supreme court implicitly held in Peterson that a defendant’s challenges to a judicial officer (whether challenges for cause or peremptory challenges) constitute “proceedings concerning the defendant” for purposes of Rule 45(d)(1) — and that the delay attributable to these challenges is excluded from the Rule 45 calculation.

Why judicial recusals — that is, judicial disqualifications that are imposed sua sponte — may likewise constitute “proceedings concerning the defendant” within the meaning of Criminal Rule ⅛5 (d)(1)

The next question is whether Rule 45(d)(1) applies to situations in which the challenge to the judicial officer is self-generated — that is, situations in which a judicial officer, unprompted by either of the parties, concludes that he or she should be disqualified from participation in the proceeding.

Keller argues that Rule 45(d) should not be construed to exclude periods of time that are out of a defendant’s control. He contends that time should not be exempted under Rule 45(d)(1) unless the triggering action or event was initiated by the defendant — and, thus, that the rule should not cover judicial disqualifications that are initiated sua sponte. But, as the majority opinion explains, Rule 45(d)(1) expressly encompasses some periods of delay that are not attributable to actions or events instigated by the defendant — for example, delay attributable to competency proceedings and the trial of other criminal charges. Accordingly, the sua sponte nature of the judicial disqualification is not an impediment to categorizing it within Rule 45(d)(1).

The remaining question is whether there is some other reason to believe that Rule 45(d)(1) includes a defense motion to disqualify a judge but does not include a judge’s sua sponte disqualification.

There appears to be no material distinction between situations in which the defendant questions the judge’s ability to be fair and situations in which the judge raises this question sua sponte. The issue of a judge’s ability to be fair is similar to the issue of the defendant’s competency, in that both are essential to the criminal proceeding. If the judge can not be fair, or if the defendant is incompetent to stand trial, the trial can not go forward. This is true even if the defendant wishes to proceed to trial despite these flaws. Thus, the law allows any participant in the litigation (the defendant, the state, or the judge) to raise either of these issues.

Under Rule 45(d)(1), the time attributable to competency examinations and hearings is expressly excluded from the speedy trial calculation, even when the defendant opposes the litigation of the competency issue. This same policy suggests that the time attributable to an assessment of the judge’s ability to be fair should also be excluded from the Rule 45 calculation, regardless of whether the inquiry is initiated by the defendant (as was the ease in Peterson), or by the prosecutor, or by the judge (as in Keller’s case).

Moreover, if Rule 45(d)(1) were construed so that it covered judicial disqualifications initiated by the defendant (as in Peterson) but did not cover judicial recusals (ie., disqualifications initiated by the judge), this would discourage judges from complying with their duties under Judicial Conduct Canon 3E and AS 22.20.020. As the majority opinion explains, judges may have a difficult time assessing whether they should re-cuse themselves in a particular case. Rule 45(d) should not be interpreted in a way that makes judges’ decisions substantially more difficult — -by confronting judges with the dilemma that adherence to their ethical duty might result in violation of the speedy trial rule, thus barring the government from prosecuting the defendant.

For these reasons, a good argument could be made that the holding in Peterson — the holding that a defense-initiated challenge to the trial judge is a “proceeding concerning the defendant” under Rule 45(d)(1) — should be extended to instances in which the judge’s disqualification arises from recusal. However, under the facts of Keller’s ease, such an argument is moot — because (as explained in the Court’s main opinion) the four extra days in Keller’s case are excused under Rule 45(d)(7).

      . See Criminal Rule 45(c)(1).

      . See Criminal Rule 40(a): "Except as otherwise specifically provided ..., in computing any period of time, the day of the act or event from which the designated period of time begins to run is not to be included."

      . See, e.g., Amidon v. State, 604 P.2d 575, 577 (Alaska 1979).

        .See AS 12.47.100(b), which recognizes that competency proceedings can be initiated by the court "upon its own motion”.

      . Peterkin, 543 P.2d at 424.

      . See DeMille, 581 P.2d at 677-78.

      . Peterson, 562 P.2d at 1356.

      . See the text of the former version of Rule 45(c)(1), quoted in Peterson, 562 P.2d at 1356.

      . Peterson, 562 P.2d at 1356.

      . Id. at 1355.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. at 1356.

      . Id.

      . Id.

      . See, e.g., Peterkin v. State, 543 P.2d 418, 423 (Alaska 1975), suggesting that Rule 45(d)(7) was included in Rule 45 to handle situations that were "unique [or] unforeseen".


source: Caselaw Access Project

author: Justice KOURLIS

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff v. Jimmy Joseph VASQUEZ, Defendant.
    No. 03SA218.
    Supreme Court of Colorado, En Banc.
    Feb. 9, 2004.
    Rehearing Denied March 1, 2004.
    Robert S. Grant, District Attorney, Michael Milne, Senior Deputy District Attorney, Brighton, Colorado, Attorneys for Petitioner.
    David S. Kaplan, Colorado State Public Defender, Jason Middleton, Deputy State Public Defender, Katherine Brien, Deputy State Public Defender, Scott Evans, Deputy State Public Defender, Todd Nelson, Deputy State Public Defender, Denver, Colorado, Attorneys for Defendant.
   Justice KOURLIS

delivered the Opinion of the Court.

I. Introduction

In this case, the defendant is on trial for first degree murder, and the state has indicated its intent to seek the death penalty. The defendant claims that he is mentally retarded. Section 18-1.3-1102, 6 C.R.S. (2003) (the “statute”), is the statute that sets forth the procedures to be followed when a defendant raises issues of mental retardation in a death penalty case. Upon motion of the defendant, the trial court here declared the statute unconstitutional because it requires the defendant to prove retardation by clear and convincing evidence to the satisfaction of the court at a pre-trial proceeding. We issued a rule to show cause to review that determination.

The United States Supreme Court has held that the Eighth Amendment to the United States Constitution bars execution of the mentally retarded. Atkins v. Virginia, 536 U.S. 304,122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Because we are dealing here with a statutory procedure that exempts some defendants from any further capital proceedings, we conclude that it does not offend Atkins.

Accordingly, we hold that section 18 — 1.3— 1102 is constitutional; we make our rule to show cause absolute, and remand the case to the trial court for further proceedings.

II. Facts and Procedural History

On September 5, 2002, the Adams County District Attorney (the “prosecution”) charged Jimmy Joseph Vasquez with first degree murder, a class one felony, related to the death of his wife, Angela Marie Vasquez. Vasquez pled not guilty to the charge on December 17, 2002, and the court set a jury trial for May 12, 2003. On February 14, 2003, the prosecution filed a notice of intent to seek the death penalty in the case pursuant to section 18-1.3-1201(3), 6 C.R.S. (2003), and listed the aggravating factors related to the crime that it contended would justify a sentence of execution. After Vasquez requested a continuance on March 7, 2003, and waived speedy trial, the trial was reset to October 14, 2003. On June 2, 2003, Vasquez filed a “notice of mental retardation,” pursuant to section 18-1.3-1102(1).

On June 5, 2003, Vasquez filed a motion with the court arguing that section 18-1.3-1102 is void because it places an unconstitutional burden of proof on the defendant. At a hearing held on the motion on July 3, 2003, the court agreed with Vasquez and ruled that section 18-1.3-1102 impermissibly placed on the defendant the burden of proving his mental retardation. To cure that problem, the court ordered the prosecution to prove that Vasquez was not mentally retarded by a preponderance of the evidence.

On August 8, 2003, the prosecution filed a petition for a rule to show cause under C.A.R. 21 why the district court’s order should not be vacated. On August 18, 2003, we issued such a rule and the parties briefed the issue.

III.Analysis

Vasquéz requests that this court declare section 18-1.3-1102 unconstitutional. He contends that the prohibition announced in Atkins cannot be sustained by requiring a defendant to bear the burden of proof concerning the fact of mental retardation. Instead, he insists that it is the prosecution that must prove the defendant’s lack of retardation beyond a reasonable doubt.

Alternatively, Vasquez argues that because the Eighth Amendment imposes a categorical bar on the execution of the mentally retarded, it follows that the burden placed on the defendant in 18-1.3-1102 is unconstitutionally high. He states that requiring a defendant to prove his own mental retardation by clear and convincing evidence does not adequately protect the constitutional prohibition heralded by Atkins. Rather, he requests that this court limit the defendant’s -burden to a preponderance of the evidence standard.

We conclude, however, that because section 18-1.3-1102 merely sets out a process by which a court determines whether a criminal defendant is indeed mentally retarded in order to avoid an unnecessary capital trial, and because nothing in Atkins would prohibit such a process, the statute’s allocation of burdens is constitutionally permissible. Further, we also hold that the standard of proof placed upon the defendant — clear and convincing evidence — is constitutionally adequate.

A. Background

Colorado has barred the execution of the mentally retarded since 1993, when the General Assembly passed sections 18-1.3-1102 and 18-1.3-1103. Ch. 155, sec. 1, § 16-9-402, 1993 Colo. Sess. Laws 543, 543-44; Ch.318, see. 2, § 18-1.3-1102, 2002 Colo. Sess. Laws 1365,1365-66 (moved to its current location); Ch. 155, sec. 1, § 16-9-403, 1993 Colo. Sess. Laws 543, 544; Ch. 318, sec. 2, § 18-1.3-103, 2002 Colo. Sess. Laws 1365, 1444 (moved to its current location). Where section 18-1.3-1103 substantively precludes executing a mentally retarded defendant, section 18-1.3-1102 provides the procedural mechanism by which the court determines whether the defendant is in fact mentally retarded. That statute states in pertinent part that when a defendant files a motion alleging that he is mentally retarded,

[t]he court shall hold a hearing upon [such] motion [at which hearing], the defendant shall be permitted to present evidence with regard to such motion and the prosecution shall be permitted to offer evidence in rebuttal. The defendant shall have the burden of proof to show by clear and convincing evidence that such defendant is mentally retarded.

§ 18-1.3-1102(2). In providing this protection, the General Assembly was under no constitutional imperative since the Supreme Court had decided in 1989 in Penny v. Lynaugh, 492 U.S. 302, 305, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), that the U.S. Constitution did not bar the practice of executing mentally retarded criminal defendants. Thirteen years later, however, in Atkins, the Supreme Court overturned its decision in Penny and declared the execution of the mentally retarded unconstitutional. 536 U.S. at 320, 122 S.Ct. 2242. Citing to the evolving standards of decency, contemplated by the Eighth Amendment, the Court held that executing a mentally retarded defendant was indeed cruel and unusual punishment and that, as a result, “the mentally retarded should be categorically excluded from execution.” Id at 318, 122 S.Ct. 2242.

The Court observed that notwithstanding its decision in Penny, many states, including Colorado, had either prohibited the death penalty altogether or barred the execution of the mentally retarded in particular. Id. at 314-16, 109 S.Ct. 2934. Since even those states that did not bar the death penalty for the mentally retarded rarely executed mentally retarded defendants, the practice had “become truly unusual.” Id. at 316, 109 S.Ct. 2934. Further, the Court explained that because sentencing a mentally retarded defendant to death failed to “measurably contribute to” either of the two acceptable social goals justifying the death penalty, — “retribution and deterrence of capital crimes by prospective offenders” — executing a mentally retarded defendant was “excessive.” Id. at 319, 321, 109 S.Ct. 2934. For these reasons, the Court concluded that the Eighth Amendment places “ ‘a substantive restriction on the State’s power to take the life’ of a mentally retarded defendant.” Id. at 321, 109 S.Ct. 2934 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)).

B. Colorado’s Mental Retardation Statute

At the outset, we acknowledge that we deem a statute to be facially unconstitutional only if “no conceivable set of circumstances exists-under which it may be applied in a constitutionally permissible manner.” Woldt v. People, 64 P.3d 256, 266 (Colo.2003). Further, “[b]ecause we respect the roles of the legislative and executive branches, we presume that statutes are constitutional.” Id. And, “a defendant challenging the constitutionality of a statute bears a heavy burden of proving the statute unconstitutional beyond a reasonable doubt.” People v. Bossert, 722 P.2d 998,1002 (Colo.1986).

Vasquez raises two arguments. He first maintains that the substantive prohibition recognized by the Supreme Court in Atkins is such that a defendant cannot be required to bear the burden of proving its operation. Second, he insists that even if Atkins does not protect the defendant from bearing the burden of proof, it at least requires a lower burden than clear and convincing evidence. We disagree on both points.

1. Allocation, of Proof

Atkins placed a “substantive restriction on the State’s power to take the life of a mentally retarded offender.” Atkins, 536 U.S. at 321, 122 S.Ct. 2242 (internal quotation marks omitted)(emphasis added). Far from announcing a procedural rule, Atkins merely declared that the Eighth Amendment now prohibits the execution of the mentally retarded. Id. In reaching its conclusion that evolving standards of decency precluded such executions, the Court looked to the states, including Colorado, that already had statutes in place to prohibit such a practice. The Court observed that “[t]o the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.” Id. at 317, 122 S.Ct. 2242. Thus, “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Id. Citing to its earlier decision in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), where the Court declared a similar exception for the insane, the Court then explained that it would “leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Atkins, 536 U.S. at 317,122 S.Ct. 2242 (internal quotation marks and omissions omitted) (quoting plurality portion of Wainwright, 477 U.S. at 416-17, 106 S.Ct. 2595).

Consequently, Atkins set forth the substantive restriction against executing the mentally retarded, but left to the states the responsibility for implementing the restriction. Colorado already had a procedure in place in the form of section 18-1.3-1102. See also Atkins, 536 U.S at 313-14, 122 S.Ct. 2242 (remarking that Georgia was the first state to bar the execution of the mentally retarded and citing favorably to that statute, which then and now requires the defendant to prove his mental retardation beyond a reasonable doubt, the most stringent standard of any statute, Ga.Code § 17-7-131(c)(3) (2003)).

2. Standard of Proof

Vasquez alternatively argues that the principles set forth in Atkins at a minimum preclude the imposition of a clear and convincing standard of proof upon him. He argues that while “a pre-trial hearing is appropriate to determine whether the case should even proceed to a capital case,” the standard of proof required of him here is unconstitutionally high. He contends that under Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), in order to protect a mentally retarded defendant from execution, a state may require that defendant to prove his mental retardation by no more than a preponderance of the evidence. Thus, he insists, Colorado’s statute exceeds constitutional bounds by requiring him to prove the fact of mental retardation by clear and convincing evidence. We are not persuaded.

In Cooper, the Supreme Court struck down an Oklahoma statute that required a criminal defendant alleging incompetency to stand trial to prove that allegation by clear and convincing evidence in a pre-trial hearing. 517 U.S. at 356,116 S.Ct. 1373. There, the defendant argued, and the Court agreed, that historical and modern practice as well as the fundamental right at issue in that case prevented Oklahoma from trying a defendant who had demonstrated his incompetence by a preponderance of the evidence. Id. at 355, 116 S.Ct. 1373.

Vasquez argues that Cooper directs us to overturn our statute solely based on the nature of the right at issue. He maintains that because the Eighth Amendment right not to be executed due to mental retardation is equally as fundamental as the right not to be required to stand trial due to incompetence, it follows under Cooper that Colorado may no more require him to prove his mental retardation by clear and convincing evidence than Oklahoma could require the defendant in that ease to prove his incompetence by clear and convincing evidence.

However, the concerns that the Court outlined in Cooper are simply not implicated here. The procedure envisioned by the statute is a pre-trial procedure that obviates any further capital offense proceedings in some cases. Imposing upon the defendant the burden of proving his retardation by clear and convincing evidence for that purpose offends no constitutional mandate.

Hence, neither the procedural rule of Cooper nor the substantive restriction of Atkins limits Colorado’s discretion in allocating and quantifying the appropriate burden of proof. We, therefore, conclude that the standard of proof required of section 18-1.3-1102 is constitutionally permissible.

IV. Conclusion

Because we hold the Colorado statute to be constitutionally sufficient under all applicable standards, we now make the rule to show cause absolute. We remand this case to the trial court for further proceedings.

      . The defendant argues that the statute must also be gauged against the requirement in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) that factors making a defendant death-eligible must be proven to a jury. Both because proof by clear and convincing evidence of mental retardation at this stage of the proceedings does not make him death-eligible, but rather makes him ineligible, and also because such questions are not properly before us at this time, we decline to reach those issues.

      . § 18-3-102, 6 C.R.S. (2003).

      . At the time Atkins was decided, in addition to Colorado’s statute and Georgia’s beyond a reasonable doubt standard, two other states that banned the execution of the mentally retarded required the defendant to prove his mental retardation by clear and convincing evidence — Florida, Fla. Stat. § 921.137(4) (2003), and Indiana, Ind.Code § 35-36-9-4(b)(2003). Since Atkins, two states have passed statutes requiring a mentally retarded defendant to prove his mental retardation by clear and convincing evidence— Arizona, Ariz.Rev.Stat. § 13-703.02(G) (2003), and North Carolina, N.C. Gen.Stat. § ISA-2005 (c) (2003).


author: Chief Justice MULLARKEY’delivered Justice KOURLIS

text:
    Lana Lea DAVISON, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE of Colorado, The City of Loveland Police Department, and CIRSA, Respondents. Cheryl Mobley, Petitioner, v. The Industrial Claim Appeals Office of the State of Colorado and King Soopers, Respondents.
    Nos. 03SC179, 03SC83.
    Supreme Court of Colorado, En Banc.
    Feb. 9, 2004.
    As Modified on Denial of Rehearing March 1, 2004.

      Steven U. Mullens, P.C., Andrew C. Gor-gey, Steven U. Mullens, Colorado Springs, Colorado, Attorneys for Petitioner, Cheryl Mobley.
    Jan A. Larsen, Fort Collins, Colorado, Attorney for Petitioner, Lana Lea Davison.
    Ken Salazar, .Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent, Industrial Claim Appeals Office;
    Weinberger & Serruto, P.C., Robert A. Weinberger, Kristin M. Murphy, Denver, Colorado, Attorneys for Respondent, King Soopers.
    Nathan, Bremer, Dumm & Myers, P.C., Anne Smith Myers, Michell.e N. Young, Denver, Colorado, Attorneys for Respondents, City of Loveland Police Department and CIRSA.
   Chief Justice MULLARKEY’delivered

the Opinion of the Court.

I. Introduction

Consolidating two cases for opinion, we interpret a section of the Workers’ Compensation Act that awards benefits to a worker who is permanently disabled by a job-related psychological trauma. We granted certiorari on two cases in which claimants were denied workers’ compensation benefits because they did not present expert medical or psychological testimony regarding both clauses of “mental impairment” as defined by section 8-41-301(2)(a), 3 C.R.S. (2003). The two clauses of the “mental impairment” definition require the injury: 1) to be “a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury,” and 2) consist of 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.” There is no dispute that section 8M4-301(2)(a) requires a claim of mental impairment to be proved by evidence “supported by” the testimony of a licensed physician or psychologist. Rather, what is at issue in both of these cases is whether such expert testimony must be sufficient in itself to prove all elements of mental impairment, as defined by the statute.

In the first ease, Davison v. Industrial Claim Appeals Office, 72 P.3d 389 (Colo.App.2003), the Administrative Law Judge (“ALJ”) found that the claimant, Lana Lea Davison, met her burden of proof under section 8^41-301(2)(a). § 8-41-301(2)(a), 3 C.R.S. (2003). However, the Industrial Claim Appeals Office (“ICAO”) reversed, concluding the evidence was insufficient to support an award of benefits because the claimant’s expert did not testify as to the second clause of the “mental impairment” definition. The court of appeals affirmed the ICAO’s denial of the claim. Id.

In the second case, Mobley v. Industrial Claim Appeals Office, W.C. No. 4-359-644, 2003 WL 306131 (Colo.App. Feb.13, 2003), the ALJ and the ICAO similarly denied Cheryl Mobley’s workers’ compensation claim because she did not present expert testimony supporting the conclusion that the events at issue would evoke symptoms of distress in a worker similarly situated. The court of appeals affirmed, finding that section 8-41-301(2)(a) clearly imposes the requirement that expert testimony establish both statutory clauses of a mental impairment claim. Id.

We hold that under section 8-41-301(2)(a), a medical or psychological expert witness must testify as to those matters within his or her expertise. Specifically, the expert must establish that the claimant has a recognized, permanent disability resulting from a psychologically traumatic event. A Claimant may introduce any competent evidence, including non-expert or expert testimony, to prove that an injury arose in the course and scope of employment, was generally outside a worker’s usual experience, or would evoke significant distress in a similarly situated worker. We therefore reverse the judgments of the court of appeals in both cases, and remand them for further proceedings consistent with this opinion.

II. Facts and Proceedings Below

A. The Davison Case

The first case involves a workers’ compensation claim for death benefits. Claimant Lana Lea Davison is the widow of David Davison, a captain in the City of Loveland Police Department (“LPD”) who committed suicide in 1996. Davison filed a workers’ compensation claim shortly thereafter, alleging her husband’s depression and suicide stemmed from job-related stress.

For approximately three years, as captain of the Operations Division of the LPD, David Davison had responsibility for dealing with all personnel issues, which required him to impose discipline on other officers when necessary. This became a source of significant stress for him, resulting in untreated, clinical depression. Shortly before his death, Captain Davison’s distress became particularly acute when he learned that police officers under his command had engaged in improper conduct during a sting operation intended to apprehend prostitutes. Also contributing to Captain Davison’s deepening and ultimately psychotic depression during this time period were the death of his brother in 1994 and his wife’s diagnosis with hepatitis in 1995.

In support of her claim, Davison presented the expert testimony of Dr. Robert David Miller, a licensed psychiatrist. Dr. Miller assessed Captain Davison’s psychiatric condition prior to his death, and diagnosed an occupational disease of depression. Specifically, Dr. Miller opined that the precipitating and chief factor in the development of Captain Davison’s depression was the stress caused by his employment, which had been building over four to five years. Captain Davison’s supervisor, Chief Tom Wagoner, also testified. During cross-examination, Chief Wagoner acknowledged that the demands on Captain Davison, had he experienced them himself, would have caused him to experience significant stress.

The ICAO remanded this case twice, the first time after the ALJ denied the claim, and the second time after death benefits were awarded. Addressing the second clause of the “mental impairment” definition, the ALJ concluded that while other factors were in play, Captain Davison’s depression was principally caused by the stress of his job at the LPD. The ALJ further found that the type of job pressures he experienced were unique, outside a police captain’s usual experience, and would evoke significant symptoms of distress in a similarly situated police captain.

The ICAO reversed and denied Davison benefits, concluding that she failed to prove her claim because no medical or psychological expert testified as to the second clause of section 8^11-301(2)(a), namely whether Captain Davison experienced a traumatic event that would evoke significant symptoms of distress in a worker in similar circumstances.

The court of appeals affirmed the ICAO decision, rejecting Davison’s argument that physicians and psychologists are unequipped to testify as to the usual experiences of workers in various types of employment. The court held: “Because we cannot say that such topics are necessarily beyond the expertise or specialized knowledge of physicians or psychologists, we apply the statute as written.” The court of appeals held that section 8-41-301(2)(a) clearly requires a medical or psychological expert to testify as to both clauses of mental impairment, as defined by the statute. Davison v. Indus. Claim Appeals Office, 72 P.3d 389, 391 (Colo.App.2003). The court held this requirement, which imposes a high burden of proof on mental impairment claims, was consistent with the legislative intent to eliminate frivolous claims.

B. The Mobley Case

Claimant Cheryl Mobley, a pharmacist employed by the King Soopers grocery store chain, was called to a meeting with her store manager and two security officers in August 1997. As she reached the top of the stairs on her way to the meeting room, one of the security officers allegedly “bumped” her, startling her and causing her to almost fall backward down the stairs. During the meeting, Mobley claims the meeting room was locked and that she was not permitted to leave. Mobley testified that she was initially unaware of the purpose of the meeting, but asked for a union representative if it was disciplinary in nature. At that point, Mobley claims the same security officer who bumped her became agitated, and banged his fists on the table. The store manager then told Mobley to inform her union representative that the meeting concerned an investigation involving her “time card irregularities.” Ultimately, when no union representative could be found, the manager terminated the meeting.

Shortly after the meeting, Mobley experienced trouble breathing and tightness in her chest. She contacted her physician, Dr. Bernard Gipson, who advised her to report to the emergency room. After several hours of observation, Mobley’s treating physician diagnosed a stress reaction, but advised that she follow up with her own doctor. Upon evaluating Mobley, Dr. Gipson filled out a disability certificate stating she was totally incapacitated and should not return to work until her symptoms could be further evaluated. Mobley’s treating psychiatrist, Dr. Ruth Fuller, subsequently diagnosed Mobley with “major depression, single episode without psychosis, severe” and post-traumatic stress disorder related to work.

Mobley filed a workers’ compensation claim for mental impairment benefits. Hearings were subsequently held before an ALJ. Mobley presented the testimony of four medical experts, who testified regarding Mobley’s medical and psychological problems arising from the incident at work. One of the experts, Dr. Kenneth Gamblin, submitted his opinion that:

Ms. Mobley has developed post traumatic stress disorder as a result of a work-related incident on August 21, 1997.... In my opinion, the stress leading to the development of post traumatic stress disorder was over and above that which could be expected by a person working in her capacity, thus qualifying her for workers’ compensation benefits.

After the last hearing, the ALJ decided to keep Mobley’s case-in-chief open for the limited purpose of allowing the parties to introduce portions of the transcript from the parallel wrongful termination arbitration arising from the same incident. However, before the deadline for making the designations arrived, King Soopers filed a motion to dismiss. The ALJ granted the motion, ruling that Mobley had failed to meet her burden of proof under section 8-41-301(2)(a). The ALJ specifically found that she did not produce sufficient evidence from a licensed physician or psychologist to support her claim that the injury consisted of a psychologically traumatic event that would evoke significant symptoms of distress in a worker similarly situated.

On review, the ICAO affirmed the dismissal of Mobley’s claim and held the ALJ correctly determined Mobley was required to present the oral or written opinion of a licensed physician or psychologist to support the conclusion that the events at issue would evoke symptoms of distress in a worker similarly situated. The ICAO further affirmed the ALJ’s ruling that no such evidence was presented, and concluded that the ALJ’s dismissal of the claim before affording Mobley an opportunity to make reference to transcripts of the arbitration hearing was harmless.

The court of appeals affirmed the ICAO decision, holding that: (1) the ALJ had properly applied the requirements of section 8-41-301(2)(a); (2) even if the ALJ had erred by ruling on the motion to dismiss before the transcript references had been submitted, such error was harmless; and (3) the ALJ’s refusal to consider the arbitrator’s decision in the wrongful termination proceeding did not amount to an abuse of discretion warranting reversal.

III. Analysis

We hold that section 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, which asks whether the injury “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 worker in similar circumstances.” While expert testimony must support a claim, both expert and non-expert testimony is admissible to prove the claim. Expert testimony must prove that the claimant suffered a recognized, permanent disability as the result of a psychologically traumatic event. Other competent evidence is admissible to prove that the injury was outside the worker’s usual experience, and that similarly situated workers would have reacted similarly. We find this interpretation to be consistent with the language of the statute, prior precedent interpreting that language, and legislative intent.

A. Standard of Review

We review an administrative agency’s decision under an abuse of discretion standard. See Indus. Claim Appeals Office v. Orth, 965 P.2d 1246, 1255 (Colo.1998); Coates, Reid & Waldron v. Vigil, 856 P.2d 850, 856 (Colo.1993). “Although we defer to the agency’s determinations of fact, we review its conclusions of law de novo.” Colo. Dept. of Labor and Employment v. Esser, 30 P.3d 189, 193 (Colo.2001). We also “give considerable weight to an agency’s interpretation of its own enabling statute”; however, we set aside actions or interpretations that are clearly erroneous, arbitrary, or otherwise not in accordance with the law. Id. at 194; CF & I Steel, L.P. v. Pub. Utils. Comm’n, 949 P.2d 577, 585 (Colo.1997).

These cases present a question of statutory construction. In interpreting a statute, a reviewing court must determine and put into effect the intent of the legislature. People v. Banks, 9 P.3d 1125, 1127 (Colo.2000). We start with the language of the statute. If its language is clear, we interpret the statute according to its plain and ordinary meaning. Vaughan v. McMinn, 945 P.2d 404, 408 (Colo.1997). In so doing, we construe the statute as a whole, in an effort to give “consistent, harmonious and sensible effect to all its parts.” Carlson v. Ferris, 85 P.3d 504, 508, 2003 WL 22831923, at ⅜3 (Colo. Dec.l, 2003). In the workers’ compensation context, the General Assembly expressly declared its legislative intent:

It is the intent of the general assembly that the ‘Workers’ Compensation Act of Colorado” be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation, recognizing that the workers’ compensation system in Colorado is based on a mutual renunciation of common law rights and defenses by employers and employees alike.

§ 8-40-102(1), 3 C.R.S. (2003).

We are obliged to effectuate this legislative intent in interpreting the meaning of section 8-41-301(2)(a). As we have often noted, the Workers’ Compensation Act is intended to be “remedial and beneficent in purpose, and should be liberally construed” in order to accomplish these goals. Colo. Counties, Inc. v. Davis, 801 P.2d 10, 11 (Colo.App.1990), aff'd sub nom. County Workers Comp. Pool v. Davis, 817 P.2d 521 (Colo.1991). However, findings of fact must be construed neutrally. See § 8-43-201, 3 C.R.S. (2003) (stating that “facts in a workers’ compensation ease shall not be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer”).

In the cases now before us, we must balance liberal construction of the workers’ compensation scheme against the legislative purpose behind the enhanced evi-dentiary requirements for mental impairment claims in section 8-41-301(2). The burden is heightened in mental impairment claims in order to help prevent frivolous or improper claims. See McCollum v. Dana’s Housekeeping, 940 P.2d 1022, 1024 (Colo.App.1996); Tomsha v. City of Colorado Springs, 856 P.2d 13, 15 (Colo.App.1992). In drafting section 8-41-301(2)(a), the General Assembly purposely differentiated between cases in which physical injury causes mental impairment (“mental-physical”) and those where mental impairment follows solely an emotional trauma (“mental-mental”). Oberle v. Indus. Claim Appeals Office, 919 P.2d 918, 920 (Colo.App.1996). Because “mental-mental” claims are less subject to direct proof, frivolous claims are more difficult to detect. Accordingly, there is a heightened standard of proof; only these claims require testimony of a licensed physician or psychologist. Id. at .921.

B. The Definition of Mental Impairment in Section 8-41-301(2)(a)

Section 8-41-301 lays out the conditions of recovery for all workers’ compensation claims, subjecting mental impairment claims to special evidentiary requirements. It states in relevant part:

A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2), “mental impairment” means a recognized, permanent disability arising from an accidental injury arising oiit 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 worker in similar circumstances.

§ 8^41-301(2)(a) (emphasis added).

The definition of “mental impairment” consists of two clauses; each clause contains three elements. The first clause requires a claimant to prove the injury consists of: 1) a recognized, permanent disability that 2) arises from an accidental injury involving no physical injury, and 3) arises out of the course and scope of employment. The second clause further requires the claimant to prove the injury is: 1) a psychologically traumatic event, 2) generally outside a worker’s usual experience, and 3) that would evoke significant symptoms of distress in a similarly situated worker. The second clause of the “mental impairment” definition is at issue here.

In the eases before us as well as on previous occasions, the ICAO has interpreted section 8-41-301(2)(a) to require a mental impairment claimant to produce expert medical or psychological testimony regarding whether the injury is generally outside a worker’s usual experience and would cause distress in a similarly situated worker. See Azu v. Vencor Hosp., W.C. No. 4-265-994, 1997 WL 846931 (Colo.Ind.Cl.App.Off. Aug. 18, 1997); Martinez v. Dept. of Corr., W.C. No. 4-202-359, 1996 WL 481214 (Colo.Ind.Cl.App.Off. July 2, 1996); Brown v. Family Inn of Colorado Springs, W.C. No. 4-271-352, 1996 WL 729823 (Colo.Ind.Cl.App.Off. Nov. 12, 1996). In both Davison’s and Mobley’s cases, the court of appeals agreed. Davison v. Indus. Claim Appeals Office, 72 P.3d 389 (Colo.App.2003); Mobley v. Indus. Claim Appeals Office, W.C. No. 4-259-644, 2003'WL 306131 (Colo.App. Feb.13, 2003).

In Colorado Department of Labor and Employment v. Esser, we considered the meaning of the first sentence of section 8-41-301(2)(a), which requires that any request for workers’ compensation arising out of a claim of mental impairmént be “proven by evidence supported by the testimony of a licensed physician or psychologist.” 30 P.3d 189 (Colo.2001). We interpreted the word “testimony” broadly to encompass not only oral testimony, but written testimony of a licensed physician or psychologist, including written reports, statements, notes, or other documents relevant to the mental impairment claim. Id. at 195.

However, we have not before addressed the meaning of the second sentence of section 8-41-301(2)(a), defining “mental impairment,” which is at issue in these cases. We do so now, employing traditional rules of statutory construction.

Respondents contend section 8^41-301(2)(a) imposes a clear requirement that expert testimony establish all elements of a mental impairment claim, including the provision that the traumatic event would evoke significant symptoms of distress in a similarly situated worker. Petitioners, on the other hand, argue the second clause of the “mental impairment” definition may not be susceptible to medical or psychological opinion, and therefore expert medical or psychological testimony cannot always be required to support it. Petitioners assert that a physician or psychologist would not necessarily have the expertise to explain a “worker’s usual experience” or what it means to be a “worker in similar circumstances.”

In construing section 8-41-301(2)(a), we begin with the ordinary meaning of its words. The statute requires a claim of mental impairment to be “proven by evidence supported by the testimony of a licensed physician or psychologist” (emphasis added). We find the legislature’s use of the word “supported” to be significant, as the statute could have simply stated that a claim of mental impairment must be “proven” by the testimony of a licensed physician or psychologist. Therefore, we must determine what it means for evidence to be “supported by” testimony.

The dictionary definition of “support” is to “serve as the foundation for,” or “to corroborate.” Webster’s Encyclopedic Unabridged Dictionary of the English Language, 1912-13 (deluxe ed.2001). A foundation is “the basis or groundwork of anything.” Id. at 756. To corroborate is “to make more certain.” Id. at 455.

In the context of section 8-41-301(2)(a), we construe the language “supported by” to mean that expert testimony must serve as the foundation for or it must corroborate the claim of mental impairment. The language does not require that all evidence regarding mental impairment must be proved through expert testimony. Corroborative or foundational testimony is, by definition, not exclusive, and in the context of this statute, the legislature’s choice of language indicates that evidence other than expert testimony is admissible to prove a claim of mental impairment. Therefore, we hold that the evidence presented must include expert testimony only as to those elements of the “mental impairment” definition that fall within the purview of the licensed physician’s or psychologist’s expertise. A claimant may introduce other competent evidence to prove any aspects of the claim that are not susceptible to expert medical or psychological opinion.

In reaching our holding, we consider the role of an expert in a workers’ compensation case. To qualify as an expert, a witness must have “greater knowledge, skill and information than the fact-finder would normally possess.” Sims v. Indus. Claim Appeals Office, 797 P.2d 777, 779 (Colo.App.1990). The ALJ has the discretion to determine whether a witness offered as an expert meets these requirements. Id. In determining the compensability of a claim, an ALJ is not bound by medical opinion, even if it is unrefuted. Indus. Comm’n v. Riley, 165 Colo. 586, 591, 441 P.2d 3, 5 (1968). The ALJ is the sole arbiter of conflicting medical evidence, and the ALJ’s- factual findings are binding on appeal if they are supported by substantial evidence or plausible inferences from the record. Postlewait v. Midwest Barricade, 905 P.2d 21, 24 (Colo.App.1995); 17 Douglas R. Phillips & Susan D. Phillips, Colorado Practice: Colorado Workers’ Compensation Practice and Procedure, § 15.87, at 717, § 15.88, at 719 (1998).

Respondents’ interpretation would effectively read the “supported by” language out of the statute, because they contend every element of the “mental impairment” claim must be proven by the testimony of a licensed physician or psychologist. Under this reading, potentially credible claims of mental impairment could be disqualified by virtue of the fact that no medical or psychological expert is qualified to testify about a particular claimant’s field of employment. We decline to adopt such an interpretation. We agree that expert medical or psychological opinion must prove that the claimant suffered a psychologically traumatic event. However, lay or expert testimony, or some combination of the two, may be necessary to prove that the traumatic event is outside a worker’s usual experience and would cause a similar reaction in a similarly situated worker. Undoubtedly, there are relevant psychological studies regarding certain occupations; it is safe to say, however, that there are many occupations that have never been studied. We have found no evidence that the legislature intended to exclude mental impairment claims by persons employed in those occupations.

Moreover, we cannot read section 8-41-301(2)(a) to require a licensed physician or psychologist to provide opinions on a subject that falls outside his or her expertise. Whether a psychologically traumatic event is generally outside a worker’s experience is something about which a medical expert may not have the background to testify. Indeed in some cases, to testify on matters outside the expert’s area of expertise would be contrary to the expert’s professional duties and responsibilities. See, e.g., § 12-43-202, 4 C.R.S. (2003) (“Notwithstanding any other provision of this article, no licensee, registrant, or unlicensed psychotherapist is authorized to practice outside of or beyond his or her area of training, experience, or competence.”).

Our interpretation of the second clause of the “mental impairment” definition is both’ informed and supported by our reading of the first. We granted certiorari in these cases in order , to clarify the second clause of the “mental impairment” definition. However, the two clauses of the definition are necessarily intertwined, and therefore we consider the second clause in light of the first. One of the requirements of the first clause is that the injury must arise out of the course and scope of the claimant’s employment; this element, on its face, does not require medical or psychological testimony. Non-expert evidence is admissible to prove this element because we recognize a medical or psychological expert may not be qualified to testify as to the nature of a claimant’s employment or whether the injury occurred in the course of that employment. This element is a routine requirement of all workers’ compensation claims, including those involving physical injury, which, unlike mental impairment claims, do not require the introduction of expert testimony.

We read the second clause of the “mental impairment” definition to be consistent with the first, and find that similarly, a medical or psychological expert may not be qualified to testify as to a “worker’s usual experience” or what it means to be a “worker in similar circumstances.” Therefore, we allow that claimant to introduce other competent evidence to prove those elements. Esser also supports our interpretation of section 8^41-301(2)(a). In that case, in construing the statute, we differentiated between the words “evidence” and “testimony,” holding the former to broadly encompass the latter: “the intent of the provision is that an impairment claim must be supported by the licensed physician’s or psychologist’s own words, in addition to whatever other evidence the claimant presents on behalf of the claim.” 30 P.3d at 196 (emphasis added). This interpretation is consistent with our holding today, as we recognize that evidence other than expert testimony may be appropriate to prove the second clause of “mental impairment.”

Finally, we find our interpretation to be consistent with the legislature’s intent that 8^41-301(2) help to eliminate frivolous claims. The statutory framework itself, which imposes numerous requirements and limitations on mental impairment claims that do not apply to claims based on physical injuries, helps protect employers from false or frivolous • claims. It makes sense to require expert medical or psychological testimony on those elements of “mental impairment” that fall within the expert’s area of expertise. However, requiring expert testimony as to those elements with non-medical aspects in no way forwards the goal of eliminating frivolous claims.

C. The Evidence in These Cases

We have found that a claimant need not produce expert medical or psychological testimony regarding the second clause of the “mental impairment” claim if it falls outside the expertise of the expert witness. However, a claimant still must meet his or her burden under section 8^41-301(2)(a), if not through expert testimony, then through other competent evidence that a psychologically traumatic event is generally outside a worker’s usual experience and would evoke significant symptoms of distress in a similarly situated worker.

Because this decision defines the standard for section 8-41-301(2)(a) for the first time, we remand both cases so that the claimants may have the opportunity to present evidence in accordance with it.

IV. Conclusion

The ALJ and ICAO should not have dismissed Mobley and Davison’s claims simply based upon their failures to present expert medical or psychological testimony regarding all elements of the second clause of the “mental impairment” definition, which asks whether an injury “consists of a psychologically traumatic event generally outside a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.” Expert testimony is necessary to prove that the event was psychologically traumatic, but the other elements can be proved by lay and/or expert evidence. Accordingly, we reverse the judgments of the court of appeals in both cases. We remand these cases to the court of appeals with instructions to return them to the ICAO to rehear the claims, and for further proceedings consistent with this opinion.

Justice KOURLIS dissents, and Justice COATS joins in the dissent.

Justice KOURLIS

dissenting:

Although I agree with the majority that, for purposes of section 8-41-301, 3 C.R.S. (2003), “mental impairment” need only be supported- — and not necessarily “proved”— by the testimony of a physician or psychologist, I conclude that the entirety of the statute’s definition of “mental impairment” is subject to that requirement. Because I would not limit the statute’s evidentiary requirement to selected elements of the statute’s “mental impairment” definition alone, I respectfully dissent. I would, therefore, affirm the court of appeals’ decisions in both of these cases.

I. Facts

A. Davison v. ICAO

The first case in this appeal involves workers’ compensation benefits sought by the widow of Captain David Davison following his suicide. At the time of Captain Davison’s death, he was in charge of the Services Division of the Loveland Police Department (the “Department”). This responsibility entailed a significant amount of personnel work in the Department. Captain Davison had assumed this particular position about four months before he died.

In the years leading up to his death, Captain Davison had experienced a number of unfortunate heartaches, both personal and professional. In April, 1994, his brother died unexpectedly and in October, 1995, his wife was diagnosed with a life-long illness. On or about April 4, 1996, Captain Davison and his supervisor, Chief of Police Tom Wagoner, discovered that several officers, while they were pursuing a sting operation regarding a prostitution ring, had engaged in sexual acts with the prostitutes they were investigating. The incident attracted a significant amount of media attention.

On April 11, 1996, Captain Davison was given the responsibility of disciplining the officers that had acted inappropriately during the sting. After Captain Davison had expressed misgivings about handling the discipline process alone, Chief Wagoner agreed to share the responsibility. Then, troubled by the mounting stresses of his job, and suffering severe psychotic depression, Captain Davison took his own life on April 16, 1996.

Shortly after Captain Davison’s suicide, his widow, Lana Lea Davison, filed a claim for workers’ compensation benefits, asserting that her husband’s psychological injury and resulting suicide were caused by job-related stress, generally compensable under workers’ compensation provisions. At an administrative hearing on her claim before an administrative law judge (ALJ), Davison presented the testimony of Dr. Robert David Miller, a licensed psychiatrist. Dr. Miller testified that Captain Davison had been suffering from depression for about four or five years before his death and that the stress from his job was the main cause of that death. The ALJ approved the .claim and made findings under section 8-41-301 — the statutory section that ■ itemizes the “conditions of recovery” for an injury of this type. The ALJ determined that Captain Davison’s “depression was principally caused by the stress of his job at the [Loveland Police Department, and t]he type of job pressures experienced by the captain were unique, outside a worker’s usual experience, and would evoke significant symptoms of distress in a worker in similar circumstances.”

Upon appeal, the Industrial Claims Appeal Office (ICAO) reversed the ALJ’s decision, concluding that Davison had failed to produce testimony of a licensed physician or psychologist showing that her husband’s injury consisted of “a psychologically traumatic event that is generally outside of a worker’s usual experience and would [have evoked] significant symptoms of distress in a worker in similar circumstances,” as required by section 8-41-301(2)(a).

On appeal to the court of appeals, Davison argued that physicians and psychologists are not capable of testifying as to that portion of the statute, and, hence, section 8-41-301(2)(a) should not be read to require such testimony. The court of appeals affirmed the ICAO’s reversal, stating that “[b]eeause we cannot say that such topics are necessarily beyond the expertise or specialized knowledge of physicians or psychologists, we apply the statute as written.” Damson v. ICAO, 72 P.3d 389, 391 (Colo.App.2003). Davison appeals to this court, arguing that the court of appeals erred in its interpretation of section 8-41-301(2)(a).

B. Mobley v. ICAO

Aso included in this consolidated opinion is the appeal of Cheryl Mobley, who had worked as a pharmacist at King Soopers for nearly twenty years before her employment was. terminated. On August 21, 1997, Mob-ley was summoned to a disciplinary meeting with the store manager and two security officers to discuss possible “time card irregularities.” Mobley claims that she was “bumped” by one of the attending security officers on the way to the meeting and that during the meeting, she was made to feel intimidated and isolated. After Mobley requested union representation, the manager ended the meeting because he could not locate a union representative in time. After the meeting, Mobley did not return to work.

Shortly after the incident, Mobley saw a psychiatrist, Dr. Fuller, vyho diagnosed her with “single episode depression.” Dr. Fuller determined that the condition resulted from Mobley’s employment and restricted her from working at King Soopers. Mobley later filed a claim for workers’ compensation benefits on the basis of a work-related mental impairment.

Hearings on Mobley’s claim began on January 22, 2001. On July 17, 2001, the ALJ held that Mobley’s case-in-chief was closed, except that the ALJ agreed to consider specific evidence from an arbitration hearing that addressed whether Mobley was wrongfully discharged under a collective bargaining agreement. King Soopers then moved to dismiss the claim on the grounds that Mobley had failed to introduce any testimony by a physician or psychologist showing that the incident allegedly causing her depression would “evoke significant symptoms of distress in a worker in similar circumstances.” The ALJ agreed and dismissed the claim.

Mobley appealed the ALJ’s dismissal to the ICAO. The ICAO agreed with the ALJ that the statute required Mobley to submit testimony, as that term is understood in Colo. Dep’t Of Labor and Employment v. Esser, 30 P.3d 189 (Colo.2001), of a licensed physician or psychologist, supporting the conclusion that the event in question would “evoke significant symptoms of distress in a worker in similar circumstances.” Accordingly, the ICAO upheld the ALJ’s dismissal.

On appeal to the court of appeals, Mobley argued that the ICAO had erroneously interpreted section 8-41-301(2)(a)’s evidentiary requirement. The court of appeals, however, upheld the ICAO’s ruling in an unpublished opinion and this appeal ensued.

II. Analysis

Section 8-41-301(2)(a) states in pertinent part that

[a] claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2), “mental impairment” means a recognized, permanent disability arising from an accidental injury 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 worker in similar circumstances.

(emphasis added). Mobley and Davison (Petitioners) do not dispute that a plain reading of this statute requires physician or psychologist testimony to support the first part of the statute’s definition — “a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury.” However, they would have this court draw a line in the statute, eliminating any requirement that a physician’s or psychologist’s testimony support the rest of the statute’s “mental impairment” definition. Petitioners argue it would be illogical to require medical testimony for the remaining portion of the statute’s definition because, they contend, whether an event is outside of a worker’s usual experience and would evoke significant symptoms of distress in a similarly situated worker is only susceptible to proof by non-medical testimony. Specifically, Mobley argues that a “disability,” of which “mental impairment” is an example, can only be proved through non-medical means. However, no one disputes that Mobley’s mental impairment is disabling— only whether her particular disability is a compensable “mental impairment” under section 8-41-301.

Davison contends that a plain reading of the statute requires only that expert medical testimony “support” a finding of mental impairment in the sense that the medical testimony must support at least some part — but not all — of the statutory definition of “mental impairment.”

A. Expert Testimony Need Only “Support” — and Not Necessarily “Prove”— “Mental Impairment”

I agree with the majority that in order to prove a “mental impairment” for purposes of section 8-41-301, a claimant need only present the testimony of a licensed physician or psychologist that tends to support a finding of “mental impairment,” as defined in the statute. The first sentence of section 8-41-301(2)(a) states that “[a] claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist.” (emphasis added). As the majority correctly notes, a plain reading of this first sentence indicates that the evidence used to prove a claim of mental impairment need only be supported by — rather than wholly consist of — expert medical testimony. This standard allows a plaintiff to carry her burden of proof with non-expert evidence, for example, as to the nature of her employment and whether the injury occurred in the course of employment, while still requiring expert testimony to buttress the claim in order to prevent recovery on frivolous claims, Oberle v. ICAO, 919 P.2d 918, 920 (Colo.App.1996).

B. Expert Medical Testimony Required to Prove the Entire Statutory Definition of “Mental Impairment”

However, the majority reads the statute to require expert medical testimony only as to some elements of mental impairment and not as to others. Maj. Op. at 1031-1032. Contrary to the majority, I do not view section 8-41-301(2)(a)’s evidentiary requirement as permitting that selective approach. Rather, I would begin by noting the statute’s obvious purpose: namely, to prevent frivolous claims related to mental injury brought on by emotional trauma that are not subject to direct proof, Tomsha v. City of Colo. Springs., 856 P.2d 13, 15 (Colo.App.1992). The plain language of section 8-41-301(2)(a) clearly requires medical expert testimony to support a finding of “mental impairment” as defined by 8-41-301(2)(a) and makes no distinction among the elements of mental impairment that must be so supported.

As in construing any statute, this court must give effect to legislative intent and we must do so by first applying the plain language of the statute. Colo. Dep’t of Revenue v. Gamer, 66 P.3d 106, 109 (Colo.2003). We must also construe all terms of a statute harmoniously, avoiding a strained or forced construction of any of its terms. Fogg v. Macaluso, 892 P.2d 271, 274 (Colo.1995). Only when the statute is ambiguous should we resort to other principles of statutory construction. DeHerrera v. Sentry Ins. Co., 30 P.3d 167, 171 (Colo.2001); Vaughan v. McMinn, 945 P.2d 404, 408 (Colo.1997). Under no circumstances may we write provisions into statutes that were clearly not intended by the legislature. Schlessinger v. Schlessinger, 796 P.2d 1385,1389 (Colo.1990).

The issue before the court in these cases is simply whether a claimant must introduce expert testimony in support of the “second clause” of the definition of “mental impairment” whether the injury “consists of a psychologically traumatic event that is naturally outside of a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.” Davi-son’s and Mobley’s claims were dismissed specifically because they failed to introduce expert testimony on that portion of the statutory definition.

I first take issue with the claimants’ argument that the sentence can be bifurcated into a “first clause” and a “second clause.” The “second clause” begins in the middle of a single descriptive phrase — “a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event.” § 8-41-301(2)(a)(emphasis added). In my view, neither the language nor the grammatical construction of the statute would support an interpretative division that would invoke expert testimony as to a portion of the phrase and not as to the balance.

Based in part upon that interpretive division in the statute, the majority concludes generally that expert testimony under the statute is limited to concepts that fall within the purview of a licensed physician’s or psychologist’s expertise, and specifically that the question about whether the injury at issue would cause a similar reaction to a similarly situated worker is outside of that rubric. I disagree both with the statutory interpretation, and also with the practical application. Like the court of appeals, I see no reason to assume that any physician or psychologist will be unable, upon a reasonable investigation, to testify as to whether the injury at issue consists of a psychologically traumatic event that is outside of a worker’s usual experience or whether that event would cause distress to other similarly situated workers, or even whether the injury arose out of or in the course of employment. Indeed, particularly the question of whether the event would cause distress to another worker under similar circumstances seems to me to be outside .the knowledge or common experience of the ordinary lay witness and, therefore, seems to demand an expert opinion. See Zick v. Krob, 872 P.2d 1290, 1294 (Colo.App.1993). I cannot conceive how a claimant would prove that an injury consists of a psychologically traumatic event and also that it would cause distress in other similarly situated workers without the help of expert testimony.

The entire statute contains an intermixture of factual conclusions and professional opinions. If the legislature had intended for the statute’s terms to carry different evidentiary requirements, it could plainly and easily have expressed this intention.

On the other hand, I also appreciate how it might be difficult for the claimant to meet her burden of proof on some of these matters without resort to non-expert evidence. Yet, this is why the legislature took care to explain that claimants were required only to support the claim of mental impairment with expert testimony — not prove it exclusively by that means.

III. Conclusion

I agree with the court of appeals’ conclusion that the plain language of section 8 — 41-301(2)(a) requires that a claimant present expert medical or psychological testimony to support all of the elements of the statutorily defined term “mental impairment” before she can recover for her “mental-mental” injury. Thus, I would affirm the court of appeals’ decisions in these consolidated cases and accordingly dissent.

I am authorized to state that JUSTICE COATS joins in this dissent.

      . The statute in effect at the time Cheiyl Mobley filed her claim was section 8-41-301(2)(a), 3 C.R.S. (1997); at the time Lana Lea Davison filed her claim, the statute in effect was section 8-41-301(2)(a), 3 C.R.S. (1996). In 1999, the statute was amended. However, the second clause of the "mental impairment” definition remained unchanged. For convenience, we will refer in this opinion to the current version of the statute, section 8 — 41 —301 (2)(a), C.R.S. (2003).

      . We granted certiorari in both cases on the following issue: "Whether section 8-41-301(2)(a), 3 C.R.S. (2002), requires a workers’ compensation claimant to present expert medical or psychological testimony regarding the second clause of the "mental impairment” definition, namely whether the injury "consists of a psychologically traumatic event that is generally outside a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.”

      . A few months before his death, in January 1996, Captain Davison became captain over the Services Division. As Services Captain, Captain Davison remained responsible for certain disciplinary actions, including the discipline of officers improperly involved in the prostitution sting.

      . Mobley later disproved the claim of timecard irregularities in a wrongful termination arbitration. In re AFL-CIO v. King Soopers, Inc., F.M.C.S. Case No. 98-07363.

      . The ALJ applied an objective standard based upon the "reasonable worker” to prove the requirements of section 8 — 41—301 (2)(a); the objective standard is applied because, as articulated by Tomsha v. City of Colorado Springs, 856 P.2d 13 (Colo.App.1992), part of the purpose of the statute is to eliminate claims based upon idiosyncratic responses to non-stressful or mildly stressful occurrences that would not produce significant distress in a reasonable worker.

      . In deciding whether an injury arose out of the course of employment, courts will look at the totality of the circumstances in evaluating whether there is a sufficient nexus between the employment and the injury; the introduction of expert testimony is not necessary to this determination. See In re Question Submitted by the U.S. Court of Appeals for the Tenth Circuit, 759 P.2d 17, 20 (Colo.1988); Portofino Apartments v. Indus. Claim Appeals Office, 789 P.2d 1117, 1119 (Colo. App.1990); In re Death of McLaughlin, 728 P.2d 337, 340 (Colo.App.1986).

      . We note that in both Davison's and Mobley's cases, 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. In Davison’s case, Chief Tom Wagoner testified that the demands on Captain Davison would have caused Wagoner to experience significant stress. In Mobley's case, Dr. Kenneth Gamblin, submitted his opinion that the triggering event in Mobley's case was over and above that which could be expected by a person working in her capacity. We remand these cases not only to allow the claimants the opportunity to present new evidence in accordance with this decision, but also so that the ALJ may evaluate the evidence already presented by the claimants to prove the elements of the statute.