Opinion
W.C. No. 4-311-175
February 19, 1999.
ORDER OF REMAND
Respondents Focus on the Family (Focus) and Colorado Compensation Insurance Authority (CCIA) seek review of a final order of Administrative Law Judge Wells (ALJ), which held them liable for medical benefits for the claimant's occupational disease. CCIA argues that the record lacks substantial evidence to support the ALJ's finding that the claimant's hypersensitivity pneumonitis (HP) was caused by exposure to antigens in the building where she worked. CCIA also contends the ALJ erred in admitting the testimony of the claimant's medical expert because it is not scientifically sound or based on the facts. Finally, CCIA contends the ALJ erred in dismissing the claim against a subsequent insurer, Fireman's Fund Insurance Company (Fireman's Fund) because the issue was not before the ALJ. We affirm the order insofar as the ALJ found a compensable occupational disease. We set aside the order insofar as the ALJ dismissed the claim against Fireman's Fund and ordered the CCIA to pay all the claimant's medical expenses.
Focus employed the claimant as an accounts payable supervisor. In this capacity the claimant was required to move throughout the employer's building. However, the claimant's office was on the second floor.
In the summer of 1994 the Focus building was flooded, and the lowest level was covered by several inches of water. Although Focus vacuum dried the carpets and applied antibacterial chemicals, the ALJ found that Focus did not replace the drywall. Shortly after the flood a Focus employee observed mold growing on the back of a cabinet in the lower level of the building. The claimant also testified to observing other water damage including stained ceiling tiles.
After the flood, the claimant developed respiratory problems and was diagnosed with HP. The claimant's medical expert, Dr. Rose, opined that the claimant developed HP because she inhaled biological antigens while working in the Focus building. In support of this conclusion, Dr. Rose testified that workplace exposure was the "most likely" cause of the HP because when building furnishings become water damaged they become ideal places for microbial agents to grow. Dr. Rose also based her opinion on the facts that mold was seen growing after the flood, and the claimant's condition improved when she was removed from the building. Finally, Dr. Rose noted that she took a "very extensive exposure" history and was unable to identify any other environment where the claimant was likely exposed to HP antigens. (Tr. pp. 127-131.)
Crediting the opinions of Dr. Rose, the ALJ found that the "most likely" cause of the claimant's HP was the "aftermath of the flood which occurred in the summer 1994." However, the ALJ conceded that HP could have been contracted as a result of the claimant's exposure to "any other water damage problems which occurred during the course of her employment of Focus."
The ALJ then ordered the CCIA to pay for the claimant's medical treatment. In support, he found that the CCIA insured Focus at the time the claimant reported the condition, and at the time she initially sought medical treatment. Further, the ALJ stated there was "no indication of proof of any subsequent permanent significant aggravation." The ALJ dismissed the claim against Fireman's Fund, which had insured Focus at some point after the CCIA's coverage ended.
I.
On review, the CCIA contends that the ALJ engaged in impermissible speculation by finding that the claimant's HP was caused by exposure to antigens while working in the Focus building. CCIA argues that the ALJ is not permitted to presume that the HP was caused by the claimant's employment without identifying a particular cause of the disease. Further, the CCIA argues that the ALJ's decision to credit the opinions of Dr. Rose appears to relate only to her diagnosis, not her opinions concerning causation. We find no error.
Section 8-40-201(14), C.R.S. 1998, provides that an occupational disease is one which results directly from the employment or the conditions under which the work was performed, follows as a natural incident of the work, can be fairly traced to the employment as a proximate cause, and does not come from a hazard to which the worker was equally exposed outside of the employment. Under this statute it is not necessary for the claimant to prove causation by mathematical certainty; rather, it is sufficient to present evidence of circumstances which indicate a reasonable probability that the disease was proximately caused by the conditions of the employment. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Indeed, findings of causation have been upheld where the exact medical cause of the injury remains shrouded in mystery, but the circumstantial evidence as a whole is sufficient to justify the inference of a work-related injury. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968).
Ultimately, the question of whether the claimant proved causation is one of fact for determination by the ALJ. Rockwell International v. Turnbull, supra. Consequently, we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Although medical evidence of causation is not necessary, if expert medical testimony is presented it is the ALJ's province to assess its weight and credibility. Rockwell International v. Turnbull, supra.
The respondents' argument notwithstanding, the record contains substantial evidence from which the ALJ could infer the claimant's HP was caused by her exposure to antigens in the Focus building. Dr. Rose, an expert in the areas of pulmonary medicine, occupational medicine, and internal medicine, opined to a reasonable degree of medical probability that the claimant's disease was caused by her exposure to antigens in the workplace. Dr. Rose testified that her conclusion was based on the claimant's history, including the development of the disease following the 1994 flood. Further, Dr. Rose relied on the absence of any other plausible explanation for the claimant's disease. Thus, the ALJ was presented with expert medical opinion that the circumstances justify an inference of occupational HP. We cannot substitute our judgment for that of the ALJ concerning the credibility of Dr. Rose or the inferences which might be drawn from the circumstantial evidence in this case. Rockwell International v. Turnbull, supra.
We reject the respondents' assertion that the ALJ did not rely on Dr. Rose's opinion concerning causation, but merely adopted her diagnosis. The ALJ is not held to a standard of absolute clarity in expressing his findings. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Here, the order in its entirety reflects the ALJ's decision to credit Dr. Rose's opinions concerning causation.
II.
The CCIA next contends the ALJ erred in admitting Dr. Rose's testimony that the claimant sustained HP as a result of exposure to antigens in the Focus building. The CCIA argues that the ALJ should have excluded Dr. Rose's testimony because her opinion lacks any credible scientific or factual basis. In support, the CCIA points out that no expert, including Dr. Rose, can identify the specific antigen which caused the HP. The CCIA also cites testimony from its experts and test results which indicate no antigens were present in the building. We find no error.
C.R.E. 702 provides that "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," a qualified expert may "testify thereto in the form of an opinion or otherwise." The ALJ, as the trier of fact, is vested with broad discretion in determining whether the evidentiary requirements governing the admission of expert testimony have been satisfied. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992). An ALJ does not abuse his discretion in permitting expert testimony so long as the expert's opinion is based upon "assumptions which have a reasonable basis in the evidence." Id. at 125.
Here, Dr. Rose identified the evidentiary basis of her opinion on causation. Those facts included the flood, the propensity for water damaged buildings to encourage the growth of microbial agents, the presence of mold on the employer's premises, the absence of alternative explanations for the claimant's disease, and the temporal relationship between the claimant's symptoms and her exposure. Substantial, albeit conflicting, evidence supports the existence of these factors, and therefore we cannot say the ALJ erred in permitting Dr. Rose's testimony. The inability of Dr. Rose to identify a specific antigen is not fatal to the finding of causation. Rockwell International v. Turnbull, supra.
It is certainly true that the respondents presented sharply conflicting evidence which could have persuaded the ALJ to find the claimant failed to prove the requisite causal relationship between her employment and the disease. However, the mere existence of conflicting evidence and alternative inferences affords no basis for interfering with the ALJ's order. Dow Chemical v. Industrial Claim Appeals Office, supra.
III.
The CCIA's final contention is that the ALJ denied it due process of law by adjudicating liability for medical benefits and dismissing the claim against Fireman's Fund. The CCIA argues that the issue of which insurer would be liable for medical benefits if the ALJ found a compensable disease was not before the ALJ, and the parties intended to reserve the issue for future determination. We agree with this contention.
When an administrative adjudication turns on questions of fact, due process requires that the parties be apprised of the evidence to be submitted and considered, and afforded a reasonable opportunity to confront adverse witnesses and present evidence in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Further, where parties reach an agreement that the ALJ is not to determine an issue, the ALJ may violate a party's due process rights if he proceeds to adjudicate the issue regardless of the stipulation. Id. at 1078.
Here, we agree with the CCIA that the record does not support the conclusion that the parties intended to litigate the issue of which insurer would be liable for the medical benefits. Rather, the discussion at the commencement of the hearing reflects the parties' understanding that the relative liabilities of the two insurers was to be determined at a later time by agreement or litigation. (Tr. pp. 9-10). Although there may or may not have been an agreement by Fireman's Fund to pay medical benefits pending resolution of the issue, there certainly was no agreement that the ALJ was to determine the relative liabilities of the CCIA and Fireman's Fund. Consequently, we agree with the CCIA that the ALJ's order must be set aside insofar as it requires the CCIA to pay all medical benefits and dismisses the claim for benefits against Fireman's Fund.
Because the issue may arise on remand, we note our prior holding concerning liability for medical benefits in cases of occupational disease where there are multiple employers or insurers. In Martinez v. Storage Technology Corp., W.C. No. 4-175-875 (August 31, 1995), we held that § 8-41-304(1), C.R.S. 1998, does not govern liability for medical benefits. We noted that in Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986), the Supreme Court concluded that the term "compensation," as used in the predecessor to § 8-41-304 (1), does not include medical benefits, but refers only to disability compensation. Thus, in Martinez, we reasoned that "liability for medical benefits must be determined under the usual rules governing liability for workers' compensation benefits." Consequently, the insurer "on the risk" at the time the employment caused, aggravated, or accelerated the claimant's disease is liable for the medical benefits in question. See also, Rigdon v. Doubletree Hotels, W.C. No. 4-175-649 (March 18, 1996).
IT IS THEREFORE ORDERED that the ALJ's order dated April 1, 1998, is set aside insofar as it ordered the CCIA to pay the claimant's medical benefits and dismissed Fireman's Fund as a party to the claim. The matter is remanded for further proceedings necessary to resolve this issue.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ David Cain
_______________________________ Bill Whitacre
Copies of this decision were mailed February 19, 1999 to the following parties:
Sandra Proffitt, 3821 Smoketree Dr., Colorado Springs, CO 80920
Focus on the Family, 8605 Explorer Dr., Colorado Springs, CO 80920
Fireman's Fund, 7600 E. Eastman, Tamara 3, Denver, CO 80231
Curt Kirksciun, Colorado Compensation Insurance Authority — Interagency Mail (For CCIA Respondents)
William A. Alexander, Jr., 3608 Galley Rd., Colorado Springs, CO 80909-43496 (For Claimant)
Frank Cavanaugh, Esq., 3464 S. Willow Street, Denver, CO 80231 Richard Rediger, Esq., 7887 E. Belleview Ave., #375, Englewood, CO 80111 (For Fireman's Fund Respondents)
BY: _______________