Opinion
W.C. No. 4-363-891
September 28, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant suffered an occupational disease and awarded benefits. We affirm.
The essential facts are undisputed. In June 1997, the claimant began working at CAPCO Inc. (CAPCO), as a "top filler" which required her to mix chemicals and place them in a pressurized syringe. During the first 30-45 days on the job the claimant wore no protective closing and the chemicals splashed onto her hands, arms, face, checks and lips. The claimant was subsequently issued protective glasses and gloves. However, the glasses didn't cover her entire face and the gloves sometimes tore.
In November 1997, the claimant began experiencing symptoms of headaches, depression, hand discoloration, hardening of the skin, body swelling, joint pain, fatigue, rashes, shortness of breath and sleeplessness. The claimant was examined by several physicians including Dr. Woelfel, who became the primary treating physician. Dr. Woelfel referred the claimant to Dr. Phillips, who is a toxicologist and Dr. Ecklund, who is a rheumatologist. Dr. Ecklund diagnosed the claimant as suffering from an auto-immune undifferentiated connective tissue disease and early Scleroderma unrelated to the employment. Dr. Phillips agreed with the diagnosis of a non-work related undifferentiated connective tissue disease. Dr. Woelfel agreed with Dr. Ecklund's diagnosis but opined that there was "a good medical probability within 51 percent" and "at least a 51 percent probability" of a causal connection between the claimant's condition and the chemical exposure at CAPCO. (Woelfel depo. pp. 20, 42).
The respondents admitted liability for an injury on November 26, 1997, and provided temporary disability and medical benefits. The respondents subsequently petitioned to withdraw the general admission on grounds the claimant's disease is unrelated to her employment.
Expressly relying on Dr. Woelfel's testimony the ALJ found the claimant suffered an occupational disease from bodily contact with chemical agents during her employment at CAPCO. Therefore, the ALJ denied the respondents' request to withdraw their admission of liability. The ALJ also ordered the respondents to pay additional medical and temporary disability benefits.
I.
On review, the respondents do not dispute the claimant's occupational contact with chemical agents. Instead they contend the claimant failed to prove a compensable injury. The respondents argue that the medical evidence does not establish within a "reasonable degree of medical probability" that there is a causal connection between the claimant's symptoms and the employment. The respondents also contend that Dr. Woelfel's opinions are legally insufficient to support the ALJ's findings because her opinions were not expressed within a "reasonable degree of medical probability." We disagree.
The claimant suffers an occupational disease when the injury is the incident of the work or a result of the exposure occasioned by the nature of the work. Section 8-40-201(14), C.R.S. 1999. In Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the court held that where the occupational exposure is not a precondition to the development of the disease, the claimant suffers an occupational disease only to the extent that the hazards of employment cause, intensify, or aggravate, to some reasonable degree, the disability for which compensation is sought. Once the claimant establishes a causal connection between the employment and her disability the burden shifts to the respondents to prove a non-work related cause of the disease. Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
The question of whether the claimant proved a compensable occupational disease is a question of fact for resolution by the ALJ, and therefore, the ALJ's findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999; Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Furthermore, the ALJ findings may be based on inferences from circumstantial evidence. See Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Contrary to the respondents' argument, the claimant is not required to establish the cause of her symptoms with "reasonable medical probability." See Morrison v. Industrial Claim Appeals Office, 760 P.2d 654 (Colo.App. 1988). Rather, the claimant may sustain her burden of proof if the claimant presents circumstances indicating with a reasonable probability that the injury resulted from or was precipitated by the employment activities, so that ALJ may infer causal relationship between injury and need for treatment. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968).
"Reasonable medical probability" is the standard upon which a medical expert must base his or her opinion. 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 her opinions. See 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). 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 as medical evidence of causation. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Moreover, medical evidence is neither required, nor dispositive of causation. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). The claimant's testimony, if credited, may alone constitute substantial evidence to support the ALJ's determination concerning the cause of the claimant's condition. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant's testimony was substantial evidence that his employment caused his heart attack); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
However, we disagree with the claimant's contention that the evidence must be liberally construed and all reasonable doubts must be resolved in favor of the claimant. Section 8-43-201 C.R.S. 1999 expressly provides that the facts "shall not be interpreted liberally in favor of" either party.
Here, the claimant's testimony contains substantial evidence supporting the ALJ's findings. (Tr. pp. 21, 23, 24, 28, 29, 30, 32, 47). Furthermore, we believe the ALJ could properly infer that the claimant's testimony combined with Dr. Woelfel's testimony is sufficient to establish a causal connection between the claimant's condition and the employment.
The claimant testified that her symptoms began in November 1997. She denied any similar health problems before June 1997. (Tr. p. 41). She also denied any prior occupational or non-occupational chemical exposure. (Tr. pp. 40-42).
Dr. Woelfel stated that after following the claimant's treatment for over a year, and observing that the claimant's condition worsened when she attempted to return to work, she believed there was a causal connection between the claimant's disease and the employment. (Woelfel depo. pp. 42, 46). Under these circumstances, the ALJ reasonably inferred that the proximate cause of the claimant's symptomatology and subsequent disability was the work- place exposure to chemical agents.
Although Dr. Woelfel was not specifically asked whether her opinions were based on "reasonable medical probability," the ALJ could reasonably infer that Dr. Woelfel's opinions that there was "a good medical probability within 51 percent" and "at least a 51 percent probability" of a causal connection between the employment and the claimant's condition rose to that standard.
Contrary to the respondents' further contention, it is inherent in Dr. Woelfel's testimony that she believed the chemical exposure at CAPCO was a necessary precondition to the development of the claimant's disease. Through a process of elimination, Dr. Woelfel found no other explanation for the claimant's disease. The ALJ found Dr. Woelfel's "diagnosis by elimination," persuasive and therefore, found the claimant presented prima facie evidence of a compensable occupational disease. See Rockwell International v. Turnbull, supra. Consequently, the burden shifted to the respondents to prove a non-industrial cause of the claimant's condition.
Furthermore, the ALJ was free to consider the fact that Dr. Woelfel was neither an expert in toxicology or rheumatology and was not familiar with the particular chemicals used by the claimant at CAPCO in assessing the probative weight of her opinions. However, these considerations affected the weight, not the admissibility of the opinion. See Industrial Commission v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968).
We also reject the respondents' contention that the opinions of Dr. Ecklund and Dr. Phillips compel a contrary result. Dr. Ecklund's testimony was equivocal. (Ecklund depo. p. 55). Although he found no causal connection between the employment and the claimant's disease, Dr. Ecklund offered no explanation for the claimant's disease. In fact, he stated that the cause of the claimant's condition is unknown. (Ecklund depo. pp. 22, 51, 52). Dr. Ecklund also admitted there is the possibility of an association between the chemical exposure and the claimant's disease, and added that using a process of "exclusion and inclusion" suggests that the claimant's daily chemical exposure at CAPCO triggered the Scleroderma. (Ecklund depo. p. 48). Dr. Ecklund also admitted that the chemical exposure put the claimant in a higher risk group for developing Scleroderma. (Ecklund depo. p. 49).
Dr. Phillips, issued conflicting reports. In his report dated May 19, 1998 Dr. Phillips stated that the claimant had Scleroderma. However, on July 16, 1998, Dr. Phillips retracted that diagnosis. Dr. Phillips also disagreed with Dr. Ecklund's opinion that the claimant's exposure to chemical agents at CAPCO placed her in a high risk category for developing Scleroderma.
II.
There is no statutory provision for the retroactive withdrawal of an admission of liability in the absence of fraud. See Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995); Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985). Here, there is no finding or allegation that the respondents' general admission was fraudulently induced. Therefore, the ALJ did not err in refusing to grant retroactive relief from the admission.
Moreover, the ALJ's findings reflect his determination that there was no error in the respondents' admission of liability. Consequently, the ALJ properly denied the respondents' request for prospective relief from the admissions. See HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990; Faulkner v. Alexander Dawson School, W.C. No. 4-294-162 (May 21, 1999).
IT IS THEREFORE ORDERED that the ALJ's order dated May 17, 1999, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed September 28, 1999 to the following parties:
Debra Naranjo, 406 N. 22nd #11, Grand Junction, CO 81504
Capco Incorporated, P.O. Box 1028, Grand Junction, CO 81502-1028
Angie Abts/Brenda Wisneiwski, Wausau Insurance Companies, P.O. Box 419157, Kansas City, MO 64141-6157
Jerry D. Otero, Esq., 850 Grand Ave., P.O. Box 1374, Grand Junction, CO 81501 (For Claimant)
William M. Sterck, Esq., 679 Grant St., Denver, CO 80203 (For Respondents)
BY: A. Pendroy