Opinion
W.C. Nos. 4-371-397 4-437-486.
October 1, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied her Petition to Reopen the workers' compensation claim delineated as W.C. No. 4-371-397, and dismissed W.C. No. 4-437-486. We affirm.
The claimant alleged a respiratory injury from her exposure to paint fumes and cigarette smoke in early February 1998. The respondent admitted liability in W.C. No. 4-371-397 for an aggravation of the claimant's "pre-existing condition of allergic rhino conjunctivitis, intermittent asthma on going bronchitis inflammatory condition." (Claimant's Hearing Exhibit 1).
On July 9, 1999, the respondent filed a Final Admission of Liability which denied liability for permanent impairment benefits and ongoing medical benefits. The Final Admission noted the claimant was permanently restricted from exposure to irritant fumes or vapors, dirt, cigarette smoke, paint, solvent vapors or vehicle exhaust. (Claimant's Hearing Exhibit 1). The claimant did not timely object to the Final Admission and the claim was closed.
On September 8, 2002, the claimant filed a Petition to Reopen which alleged a worsening of her condition from the 1998 injury. The claimant also alleged a new injury on September 21, 1999, caused by an industrial exposure to paint fumes in violation of her permanent medical restrictions. The alleged injury is the subject of W.C. No. 4-437-486.
The claimant, who is a licensed physician's assistant, was the only medical expert to testify at the hearing. The claimant testified that within a reasonable degree of physician's assistant probability, her ongoing pulmonary symptoms are the result of her employment. ( See Tr. pp. 32, 33).
The ALJ found the claimant's respiratory problems began in 1991 when she was exposed to smoke fumes from a garage fire. The ALJ also found the 1998 exposure aggravated the claimant's preexisting condition. However, crediting the opinions of Dr. Repsher, Dr. Volz, Dr. Pluss and Dr. Schwartz, the ALJ found the claimant failed to prove a worsening of her condition from the 1998 injury and failed to prove she suffered a new injury on September 21, 1999. In support, the ALJ found the "overwhelming weight of the medical evidence shows claimant has not developed asthma, occupational asthma, occupational aggravation of asthma, or RAD either from her claimed exposures in February 1998 or from her claimed exposure on September 21, 1999." Further, the ALJ noted the claimant's admission that paint fumes, exhaust fumes and other irritants are more prevalent in everyday life than at her workplace. Consequently, the ALJ found the claimant failed to prove a causal connection between her condition and the employment.
On review, the claimant contends the ALJ erroneously gave greater weight to the opinions of Dr. Respher than the claimant's testimony, where the claimant was the only medical expert to be subject to cross-examination and whose opinions were expressed within a "reasonable degree of medical certainty." The claimant also contends the ALJ misapplied the law in failing to afford special weight to the treating physician's opinions concerning the cause of the claimant's respiratory condition.
Further, the claimant contends the respondent's admission of liability in W.C. No. 4-371-397, together with evidence the respondent violated the claimant's medical restrictions required a "presumption" the claimant suffered a worsening of the original industrial injury or a compensable new injury. Relying on Mountain City Meat Co. v. Oqueda, 919 P.2d 246, 252 (Colo 1996), the claimant also argues the ALJ erroneously failed to resolve all reasonable doubt in favor of the claimant. We reject these arguments.
Initially, we note that the claimant's Designation of Record includes the "complete files of the Division of Administrative Hearings and Division of Workers' Compensation." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file and our review is limited to the evidentiary record before the ALJ. There is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, and have restricted our review to the record made at the hearing.
A "compensable" industrial accident is one which results in an injury requiring medical treatment or causing disability. The existence of a pre-existing medical condition does not preclude the claimant from suffering a compensable injury, where the industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988). The claimant bears the burden to prove a compensable injury by a preponderance of evidence and whether the claimant has sustained her burden of proof is a question of fact for resolution by the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990); Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). We must uphold the ALJ's determination the claimant failed to sustain her burden of proof if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
Further, § 8-43-303(1), C.R.S. 2002, allows ALJs to reopen a claim based on a worsening of condition after maximum medical improvement (MMI). See El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993); Donohoe v. ENT Federal Credit Union, W.C. No. 4-171-210 (September 15, 1995). Where the petition to reopen is based on an alleged worsening of condition it is the claimant's burden to establish a causal relationship between the worsened condition and the original industrial injury. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000).
The ALJ's finding the claimant failed to prove a worsened condition from the 1998 injury is binding in the absence of in the absence of fraud or an abuse of discretion. Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). The standard on review of an alleged abuse of discretion is whether the ALJ's determination exceeds the bounds of reason, as where it is contrary to the evidence or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
In determining whether the claimant has sustained her burden of proof to establish the cause of her condition, the ALJ is not required to resolve "any reasonable doubt" in favor of the claimant. To the contrary, the Workers' Compensation Act (Act) creates no "presumption of compensability" which would arise from the rule argued for by the claimant. See City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
We recognize that the court in Mountain City Meat Co. v. Oqueda, supra, held that the Act "should be liberally construed to accomplish its humanitarian purposes of assisting injured workers and their families." However, the rule of liberal construction applies to the interpretation of statutes, not the ALJ's evaluation of the evidence. See Mcelwain v. Federal Express, W.C. No. 4-207-196 (December 13, 2001). Indeed, § 8-43-201 C.R.S. 2002, provides that the "facts in a workers' compensation case shall not be interpreted liberally in favor of either the rights of the injured worked or the rights of the employer."
Next, the ALJ expressly recognized that the respondent admitted liability in W.C. No. 4-371-397 for an aggravation of the claimant's preexisting respiratory problems. ( See Findings of Fact 10, 12). However, the claimant cites no authority and we know of no rule or statute which provides that an admission of liability creates a "presumption" that the claimant's subsequent condition is causally related to the original injury or is the result of a compensable new injury. To the contrary, it is the claimant's burden to prove a causal connection between her condition and the employment by a preponderance of evidence. Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002).
Further, we do not dispute that § 8-42-107(8), C.R.S. 2002, requires ALJs to afford special weight to the treating physician's opinion on the cause of a claimant's condition where no Division-sponsored independent medical examination (DIME) has been requested on the issues of MMI and permanent impairment. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998); Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). However, it is now well established that the treating physician's opinion is not entitled to any special weight on the question of whether the claimant's condition has worsened after MMI or whether the claimant suffered a new injury. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Westerkamp v. Target Stores, W.C. No. 4-408-369 (December 26, 2001).
Here, the claimant does not dispute she reached MMI for the February 1998 injury in April 1998. Nor does the claimant contest the respondent's assertion that she had no permanent impairment as of April 1998. Instead, the claimant alleged a worsening of her condition either from a new injury or a progression of the original industrial injury. Consequently, the ALJ was not precluded from giving greater weight to the opinions of Dr. Repsher than the treating physician in determining whether the claimant proved her entitlement to additional benefits. See Cordova v. Industrial Claim Appeals Office, supra.
We also note that the ALJ was not required to explicitly discuss defenses or theories he rejected, and evidence not specifically addressed is deemed rejected by the ALJ. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Applied here, the ALJ was unpersuaded the claimant's recurrent respiratory symptoms were caused by the employer's violation of the claimant's permanent medical restrictions. Based on this record we cannot say the ALJ was compelled to find to the contrary.
Moreover, there is substantial evidence in the medical opinions of Dr. Volz, Dr. Pluss, Dr. Schwartz and Dr. Repsher to support the ALJ's finding that the claimant failed to sustain her burden to prove the requisite causal relationship between the employment and the respiratory condition for which she sought compensation. We may not reweigh the evidence on review. Consequently, we decline the claimant's invitation to do so. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000); Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
Further, we may not disturb the ALJ's credibility determinations unless the testimony the ALJ relied upon is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Admittedly an expert medical opinion is normally to be expressed as a "reasonable medical probability." Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo. App. 224, 491 P.2d 106 (1971). However, a medical expert's testimony is not incompetent merely because the expert does not use the phrase "reasonable medical probability" in articulating his or her opinions. See Beudoin Construction Co. v. Industrial Commission, 626 P.2d 711 (Colo.App. 1981) ; Shultz v. Anheuser Busch Inc., W.C. No. 4-380-560 (November 17, 2000), aff'd. Anheuser Busch Inc. v. Industrial Claim Appeals Office (Colo.App. No. 00CA2242, November 8, 2001) (not selected for publication) (DIME findings if relevant do not need to be expressed in reasonable degree of medical probability to be admissible); Beach v. Wheat Ridge Fire Protection District, W.C. No. 3-977-580 (September 4, 1992). Rather, it is for the ALJ, as trier of fact, to consider the expert's opinion and determine from the substance of the opinion whether it carries sufficient weight to be considered credible medical evidence of causation. See Rockwell International v. Turnbull, supra.
Further, the claimant does not cite any authority to support her contention that only expert medical testimony which has been subject to cross-examination may be considered by the ALJ. In contrast, § 8-43-210, C.R.S. 2002, provides that a physician's written report is admissible evidence. Insofar as a claimant seeks to challenge the contents of a written medical reports, it is the claimant's responsibility to secure the physician's attendance at the hearing.
In this case, the claimant did not arrange for any physician to attend the hearing. Neither did the claimant object to the admission of the medical reports in the respondent's hearing exhibits. ( See Tr. p. 5). Therefore, the claimant waived her argument that the documentary evidence submitted by the respondent is legally insufficient to support the ALJ's findings. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); C.R.E. 103(a)(1) (error may not be predicated on ruling which admits evidence unless a timely objection to strike the evidence appears of record).
Moreover, the claimant admitted that physician assistants work under the direct supervision of a medical doctor. (Tr. p. 27). She also acknowledged she was not working under the direct supervision of a physician with respect to her diagnosis of her respiratory condition. (Tr. p. 28). Under these circumstances, we perceive no abuse of discretion in the ALJ's determination that the opinions of Dr. Volz, who is a specialist in asthma and immunology, and the opinions of Dr. Pluss, who is a pulmonary specialist, were entitled to greater weight than the claimant's testimony. See Cordova v. Industrial Claim Appeals Office, supra; cf. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941) (ALJ considered to possess specialized knowledge which renders him competent to evaluate medical evidence and draw plausible inferences from it).
Finally, we reject the claimant's contention that the ALJ violated equal protection guarantees in treating the claimant's psychological injury differently than a physical injury. At the commencement of the hearing on December 31, 2002, the ALJ allowed the parties to make an opening statement. The claimant's attorney did not alleged the claimant suffered any work-related psychological injury. (Tr. p. 8). Therefore, the claimant's contention that the ALJ erroneously failed to find her respiratory problems were the result of a compensable psychological injury is not properly before us on review. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994) (an issue may not be raised for the first time on appeal).
IT IS THEREFORE ORDERED that the ALJ's order dated January 27, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed October 1, 2003 to the following parties:
Kathryn Davis, 3931 S. Uinta St., Denver, CO 80237
City and County of Denver, c/o Mary Padilla, Claims Adjuster, 201 W. Colfax Ave., Dept. 1105, Denver, CO 80202
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
John D. Beckman, Esq., 201 W. Colfax Ave., Dept. 1108, Denver, CO 80202 (For Respondent)
BY: A. Hurtado