Opinion
W.C. No. 4-358-281.
October 7, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ Friend) which denied the claim for benefits. The claimant argues the ALJ's pertinent findings of fact are not supported by substantial evidence in the record. The claimant further argues that she was denied due process of law because the ALJ improperly limited the scope of rebuttal testimony. Finally, the claimant contends our prior order of remand was erroneous because we did not require ALJ Friend to conduct a de novo hearing. We affirm.
This matter was before us previously. In our Order of Remand dated May 1, 2003, we set aside an order of ALJ Erickson which denied the claim for benefits. We held the claimant was prejudiced because the record lacked a transcript of the testimony given by the respondents' medical expert, Dr. Repsher. The prejudice stemmed from our inability to determine from the record whether ALJ Erickson improperly admitted testimony of Dr. Repsher which was based on a scientific experiment lacking sufficient indicia of reliability. Our order directed that a hearing be conducted to receive the testimony of Dr. Repsher, if the respondents chose to present it, and to afford the claimant an opportunity to "present rebuttal evidence." Further, the ALJ was directed to reconsider the entire record before entering a new order.
On remand, hearings were conducted before ALJ Friend on January 8, 2004, and March 4, 2004. The respondents presented the testimony of Dr. Repsher and the claimant presented the rebuttal testimony of Dr. Hogle.
As noted in our prior order, the issue in this case is whether the claimant's "preexisting sinus problems were aggravated by her exposure to chemicals used in her job as an X-ray technician." Specifically, the claimant alleged that she was exposed to a developing solution containing the chemical glutaraldehyde (hereinafter GU).
On May 5, 2004, ALJ Friend entered an order denying the claim for benefits. He found the claimant failed to prove by a preponderance of the evidence that she sustained an occupational disease caused by the conditions of her employment. In support, ALJ Friend credited the testimony of Dr. Repsher, which he found "more credible than that of Dr. Hogle and others." Specifically, Dr. Repsher opined the exposure to GU did not cause or aggravate the claimant's sinus problems. This conclusion was based on the fact the claimant had preexisting sinus problems which Dr. Repsher attributed to seasonal allergies and "some perennial allergic rhinitis." Dr. Repsher further testified, based on an industrial hygiene study, that GU was present in the claimant's workplace at such low levels that it was not likely to be toxic. Finally, Dr, Repsher placed significance on the fact that the claimant's symptoms continued after she left her employment as an X-ray technician.
I.
On review, the claimant challenges the sufficiency of the evidence to support certain findings of fact. These findings pertain to the testimony of Dr. Repsher. We perceive no error.
The claimant had the burden to prove by a preponderance of the evidence that the preexisting sinus problems were aggravated or accelerated by exposure to GU in her employment. The question of whether the claimant met this burden of proof was one of fact for determination by the ALJ. Section 8-41-301(1)(c), C.R.S. 2003; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
Because the issue is factual in nature, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). In this regard, we note the weight and credibility to be assigned expert medical testimony concerning the issue of causation is a matter for the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant first contends that Findings of Fact 3 and 36 are not supported by substantial evidence insofar as they state that GU can cause occupational illnesses if used as a pesticide, but rely on Dr. Repsher's testimony that X-ray developing solution does not contain the concentration of GU present in pesticides. The claimant asserts that Dr. Repsher's testimony concerning the concentration of GU in "pesticides" represents a misinterpretation of the document known as the EPA Recognition and Management of Pesticide Poisonings. The claimant argues that, contrary to Dr. Repsher's testimony, the only plausible interpretation of this document is that GU is a disinfectant "pesticide" which causes disease at concentrations of 2 percent. We are not persuaded by this argument.
It is true the EPA document is subject to the interpretation suggested by the claimant. However, Dr. Repsher, qualified as an expert in pulmonary medicine with experience in occupational lung diseases, stated that for GU to be used as a "pesticide" it would be highly concentrated in solution at much greater levels than was present in the developing solution. Therefore, Dr. Repsher did not interpret the EPA document in the same way as the claimant. (Tr. March 4, 2004, Pp. 95-97). We may not substitute our judgment for that of the ALJ concerning the weight to be accorded Dr. Repsher's expert testimony, nor the ALJ's resolution of the conflicts in the evidence.
The claimant next disputes the ALJ's reliance on Dr. Repsher's testimony that the "studies" done on GU and occupational disease document a relationship between GU and "symptoms," not GU and "disease." The claimant calls this distinction nonsense. However, Dr. Repsher explained that GU, because of its noxious odor, may elicit "symptoms" such as watery eyes and respiratory discomfort without actually causing any tissue damage or other physiological disorder. (Tr. January 8, 2004, P. 64; Tr. March 4, 2003, P. 76). The weight to be accorded this testimony was for the ALJ to determine.
Finally, we reject the assertion that there is no evidence to support Dr. Repsher's opinion that the claimant has seasonal allergies. (Finding of Fact 34). Dr. Repsher cited the tests conducted by Dr. Wanderer which showed reaction to certain local allergens. While Dr. Wanderer did not believe the tests revealed actual allergic responses, Dr. Repsher disagreed. The resolution of this conflict was for the ALJ. In any event, it is undisputed the claimant has a long history of preexisting sinus problems regardless of the cause.
II.
The claimant next contends the ALJ unreasonably restricted her right to present rebuttal evidence after our remand. However, the ALJ correctly interpreted our order as restricting rebuttal to testimony given by Dr. Repsher. See People v. Trujillo, 49 P.3d 316, 320 (Colo. 2002) (rebuttal may refer to contradiction of an opposing witness or to a distinct phase of the trial where a party contradicts the opposing party's case). Here, our order of remand limited rebuttal to Dr. Repsher's testimony because the claimant had already been given an opportunity to rebut the respondents' other evidence, and had exercised that right. (Tr. February 11, 1999, Pp. 144-184).
We note that due process is a flexible standard which requires only that the parties be afforded a reasonable opportunity to present evidence, confront adverse evidence, and make argument in support of their legal positions. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). Variations in the order of proof do not amount to due process violations. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Here, our order of remand was designed to create a reviewable record while protecting the respondents' right to present Dr. Repsher's testimony and affording the claimant the right to rebut Dr. Repsher's testimony. The order of remand was also entered with a view to avoiding the cost and time associated with conducting a de novo hearing.
Moreover, the claimant made no offer of proof concerning the evidence he would have presented if allowed to conduct full-scale rebuttal of the respondents' entire case. Under these circumstances, we cannot say the claimant was prejudiced by failure to permit such rebuttal. C.R.E. 103(a)(2) (if ruling is one excluding evidence party must make offer of proof to preserve record for appeal).
III.
The claimant finally contends that failure to order a de novo hearing before ALJ Friend rises to the level of a due process violation. In support, the claimant relies on the unpublished case of Billingsley v. Rockwell International Corp., (Colo.App. No. 89CA0192, April 25, 1991) (not selected for publication). We disagree with the claimant's argument.
The general rule is that an ALJ who resolves issues of fact need not be present at a hearing where testimony is received as long as the ALJ, prior to entering any order, reads a transcript of the evidence received by another ALJ. Kroupa v. Industrial Claim Appeals Office, supra; Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). An exception exists if, after a remand from another tribunal, an ALJ is required to apply legal principles to technical findings of fact entered by a previous ALJ. Legouffe v. Prestige Homes, Inc., 689 P.2d 697 (Colo.App. 1984). Billingsley held that a de novo hearing may also be required on remand if the case involves highly technical issues requiring a resolution of conflicting testimony given by expert witnesses. In Billingsley the ALJ who considered the case on remand had no opportunity to view the demeanor of the expert witnesses who testified before the first ALJ.
Here, our remand did not require ALJ Friend to apply legal principles to findings entered by ALJ Erickson. Instead, ALJ Friend was permitted to enter entirely new findings of fact based on his own assessment of the record.
Moreover, although the case largely turns on resolution of a disagreement between medical experts over the issue of causation, the case is distinguishable from Billingsley. Unlike the situation in Billingsley, ALJ Friend had the opportunity to observe and evaluate the demeanor of both Dr. Repsher and Dr. Hogle. Further, these were the only two medical experts who gave live testimony before ALJ Erickson. Thus, we consider Billingsley to be inapposite and find no due process violation under the facts present here.
The claimant also notes that before ALJ Erickson the parties presented conflicting testimony concerning the reasons for the claimant's separation from employment. However, this testimony was, at best, peripheral to the central issue in the case and does not warrant a remand for a de novo hearing.
IT IS THEREFORE ORDERED that ALJ Friend's order dated May 5, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Rose K. Selenke, Lakewood, CO, Medical Imaging of Colorado, Englewood, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Mark D. Elliott, Esq., Arvada, CO, (For Claimant).
Gary Truman, Esq., Denver, CO, (For Respondents).