Opinion
W.C. No. 4-484-507
November 20, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Snider (ALJ) which determined the claimant failed to prove a compensable occupational disease and, therefore, denied and dismissed the claim for workers' compensation benefits. We affirm.
In 1995 the employer hired the claimant to work as a home infusion nurse which required the claimant to provide intravenous therapy training to patients. Some of the claimant's patients were suffering from HIV or AIDs. Because AIDS patients are at high risk for tuberculosis (TB), the claimant was required to undergo a TB test each year of the employment. In March and September 1999 the claimant tested positive for TB.
Because the claimant is a healthcare provider for AIDS patients, Dr. Bartczak, opined "[I]t is most likely" the claimant's TB is work-related. Dr. Burkett and Dr. Schneidwind issued similar opinions because the claimant has an occupational exposure to the risk of TB.
Implicitly crediting the claimant's testimony ( see Tr. pp. 20, 25), the ALJ found that AIDS patients are closely monitored and usually treated by an infectious disease specialist who would be likely to test any patient with symptoms of a communicable disease such as TB. However, the claimant testified that to her knowledge none of her patients had TB and no treating physician notified the claimant that one of her patients had TB. (Tr. p. 17). In addition, the claimant admitted the employer's investigation revealed none of the claimant's patients had been diagnosed with TB in the two months before the claimant's positive TB test. Moreover, even though the law requires that suspected cases of TB be reported, there was no such report concerning the claimant's patients. Under these circumstances, the ALJ found the claimant established it was possible but not probable she contracted TB from during her employment. Consequently, the ALJ determined the claimant failed to sustain her burden to prove a compensable injury.
On review the claimant contends the ALJ misapplied the law insofar as he rejected the opinions of Dr. Burkett, Dr. Bartczak and Dr. Schneiderwind solely because their opinions were not stated "within a reasonable degree of medical probability." We perceive no reversible error.
To establish a compensable injury the claimant must prove to a "reasonable probability" that there is a causal connection between the need for treatment and the employment. Morrison v. Industrial Claim Appeals Office, 760 P.2d 654 (Colo.App. 1988). The claimant bears the initial burden to prove a causal connection between her disability and the hazards of the employment. Once established, the burden of proof shifts to the respondents to establish a non-industrial cause for the injury. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
Whether the claimant has sustained her burden of proof is a question of fact for resolution by the ALJ. Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). We must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Under this standard it is the ALJ's sole prerogative to assess the credibility of the witnesses. We may not set aside a credibility finding unless the ALJ's findings are overwhelmingly rebutted by hard, certain evidence to the contrary. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
The claimant is not required to present medical evidence to prove a compensable injury. However, to the extent medical testimony is presented it is the ALJ's province to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). An expert medical opinion is normally to be expressed as a "reasonable medical probability." Morrison v. Industrial Claim Appeals Office, supra; 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 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); Beudoin Construction Co. v. Industrial Commission, 626 P.2d 711 (Colo.App. 1981); Beach v. Wheat Ridge Fire Protection District, W.C. No. 3-977-580 (September 4, 1992); Naranjo v. Capco, Inc., W.C. No. 4-363-891 (September 28, 1999); Sanders v. A-1 Truck Repair, W.C. No. 4-393-485 (June 11, 1999). 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.
Contrary to the claimant's contention, the ALJ did not ignore the opinions of Drs. Burkett, Bartczak and Schneidwind. The ALJ expressly cited their opinions in Findings of Fact 10, 11, and 12. However, within his sole prerogative, the ALJ did not "afford great weight" to their opinions because he found their opinions were "conclusory and not stated as scientific fact or to a reasonable degree of medical probability." (Finding of Fact 15E). Instead, the ALJ determined that the physicians speculated that the claimant's TB was caused by her work because the claimant had a potential occupational exposure to TB. ( See Tr. p. 47; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings).
It is clear the ALJ recognized the medical evidence the claimant was at risk for an occupational exposure to TB. However, in view of the evidence that none of the claimant's patients were diagnosed with TB or suspected of having TB, the ALJ was not persuaded the physician's medical opinions concerning the potential occupational exposure were sufficient to prove it was more likely than not that the claimant actually suffered a work-related exposure to TB. (Tr. p. 45). Because these findings are supported by substantial evidence, including the claimant's testimony, we cannot say the ALJ abused his discretion in failing to credit the disputed medical opinions. See Halliburton Services v. Miller, supra.
The claimant also contends that because the physicians' opinions were unrefuted the burden of proof shifted to the respondents to prove a non-occupational cause of the TB. Again we disagree.
The ALJ found the claimant failed to sustain her initial burden to prove a work-related cause for the TB. Under these circumstances, the burden of proof never shifted to the respondents. See Cowin Co. v. Medina, supra. In any case, the ALJ would not have been required to credit the opinions of the claimant's medical experts even if they would be considered "unrefuted" or uncontradicted. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981).
Similarly, it was the ALJ's sole prerogative to assess the probative weight of the evidence that none of the claimant's patients who were tested were positive for TB. Consequently, evidence the employer did not test all of the claimant's patients did not require the ALJ to presume the untested patients had TB.
IT IS THEREFORE ORDERED that the ALJ's order dated February 7, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
____________________________________
Kathy E. Dean
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 __________November 20, 2002 _________to the following parties:
Ellyn Franks, 7566 S. Franklin Way, Littleton, CO 80122
Human Resources, Apria Healthcare, 303 E. Mineral Ave., #100, Littleton, CO 80122
Insurance Company of the State of Pennsylvania, c/o Rusty Pinckney, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Clifford E. Eley, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
William M. Sterck, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Hurtado