Opinion
W.C. No. 4-726-429.
July 7, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated January 12, 2010, that determined the claimant sustained a compensable occupational disease and that his benefits should be apportioned 90 percent to his compensable occupational disease. We affirm.
The claimant has alpha-1 antitrypsin deficiency, a hereditary condition. The claimant worked in the maintenance department for the employer. The claimant's employment was from 1997 through May 2007. The ALJ determined that the claimant credibly testified that he had no respiratory problems prior to going to work for the employer, that he suffered multiple and repeated exposures to dust, smoke and other airborne contaminants during the course of his employment, that said exposures caused his underlying condition to become symptomatic and that the continued exposures caused a progressive deterioration of his condition. The ALJ further credited the testimony of Dr. Sandhaus, which supported the claimant's contention that his underlying alpha-1 antitrypsin deficiency was asymptomatic prior to going to work for the employer and that the claimant's exposures at work from 1997 through 2007 caused the progression of his emphysema.
The ALJ concluded that the claimant had established by a preponderance of the evidence that he sustained a compensable occupational disease with 90 percent of his impairment being occupational and 10 percent caused by non-occupational respiratory infections. The ALJ found the insurer liable for 90 percent of the costs of the claimant's treatment at National Jewish Hospital. The employer brings this appeal.
I.
The respondents contend that there was not substantial evidence in the record to support the ALJ's determination that the claimant proved by a preponderance of the evidence that he sustained a compensable occupational disease during the course and scope of his employment with the employer. We disagree.
Section § 8-40-201(14) defines occupational disease as:
[A] disease which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of the employment.
As the court pointed out in Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the plain language of the statute sets forth additional requirements to the requirement that the injury arise out of and in the course of employment. Before a disease can be found to be a compensable occupational disease, it must meet each element of the four-part test mandated by section 8-40-201(14) which, in effect, operates as an additional causal limitation, ensuring that the disease arise out of and in the course of the employment. We note that alpha-1 antitrypsin deficiency suffered by the claimant here is the same disease the claimant suffered from in Anderson v. Brinkhoff.
The court in Anderson v. Brinkhoff further noted that the statutory language requiring that the disease "does not come from a hazard to which the worker would have been equally exposed outside of the employment" effectuates what is termed the "peculiar risk" test and requires that the hazards associated with the vocation must be more prevalent in the work place than in everyday life or in other occupations. In other words, "the plaintiff must be exposed by his or her employment to the risk causing the disease in a measurably greater degree and in a substantially different manner than are persons in employment generally." Anderson v. Brinkhoff 859 P.2d at 824, quoting Young v. City of Huntsville, 342 So.2d 918, 922 (Ala. Civ. App. 1976). Where there is only one cause of a disease the operation of the statute is clear — the risk, or hazard, of the disease cannot be equal to the risk experienced by the general public. Again, the hazard of the disease must be peculiar to the employment. The statute is equally clear in not requiring that hazardous conditions of employment be the sole cause of the disease or aggravation. Nevertheless, a claimant is entitled to recovery only if the hazards of employment cause, intensify, or aggravate — to some reasonable degree — the disability for which compensation is sought.
The court in Anderson v. Brinkhoff, further explained that where, however, there are dual or concurrent causes of an occupational disease, and there is no evidence that occupational exposure to a hazard is a necessary precondition to development of the disease, the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability.
The question of whether a claimant has proven that a particular disease, or aggravation of a disease, was caused by a work-related hazard is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). Consequently, we must uphold the ALJ's finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Thus, it is for the ALJ to resolve conflicts between medical experts, and to resolve any internal inconsistency, which exists in the opinions of an individual physician. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
Here, the ALJ found the claimant proved that the claimant had established by a preponderance of the evidence that he sustained a compensable occupational disease with 90 percent of the claimant's impairment being occupational and 10 percent caused by non-occupational. In coming to this determination the ALJ relied upon the testimony of the claimant, which he found to be credible. The ALJ made the following findings of fact based on the claimant's testimony. The claimant suffered multiple and repeated exposures to dust, smoke and other airborne contaminants during the course of his employment with the employer. The claimant testified that the continued exposures caused a progressive deterioration in his condition. The ALJ also found the testimony of Dr. Sandhaus to be credible and in support of the claimant's contention that his underlying Alpha-1 Antitrypsin Deficiency was asymptomatic prior to going to work for the employer and that the claimant's exposures at work from 1997 through 2007 caused the progression of his emphysema.
The respondents' assertion notwithstanding, this finding is amply supported by the opinions of Dr. Sandhaus, who stated in his November 14, 2007 report that:
It is likely that [Claimant's] work environment has accelerated the development of his emphysema. Individuals with ZZ-type Alpha-1 may lead entirely normal lives with no evidence of lung disease. Lung disease is most commonly seen in Alpha-1 patients who have smoked cigarettes (which [claimant] has not). Therefore, the most likely factors contributing to his severe lung problems are his frequent lung infections and his work environment with its exposure to dust and fumes.
Exhibit H at 50. See also Exhibit 7 at 17.
There was a sharp conflict in the evidence presented in this case. Dr. Clifford testified that the claimant's occupational exposure played no role in the progression of the claimant's lung disease. However, the ALJ found that Dr. Clifford was not persuasive. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
We note that Dr. Sandhaus had testified that if the claimant's lung condition was work-related, one would expect to see improvement after the claimant stopped working. In their post-hearing position statement the respondents had pointed to test results showing no change and even decreased lung functioning after the claimant's employment with the employer ended. The ALJ did not specifically address this issue. However, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).
Ultimately, the case came to resolution of conflicting evidence by the ALJ. We acknowledge that the respondents presented evidence at variance with the ALJ's determination of compensability. However, the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963).
Here, no party asserts that the cause the claimant's disease is occupational in nature. Alpha 1 antitrypsin deficiency is genetic. Additionally, it appears undisputed that the occupational exposure was not a necessary precondition to the development of Alpha 1 antitrypsin deficiency. However, the claimant asserted that the aggravation of his condition was compensable in that occupational exposure to dust, smoke and fumes accelerated the disease's progress. Dr. Sandhaus opined that if not for the Alpha 1 antitrypsin deficiency, it was unlikely that the risk factors to which the claimant was exposed during his work would have led to the degree of lung destruction the claimant suffered. However, Dr. Sandhaus noted that on the other hand without the occupational exposures the claimant would not have developed such significant lung disease during his life and could have avoided lung disease entirely. Exhibit 7 at 17.
The ALJ credited the opinions of Dr. Sandhaus. Here, the risk associated with the exposure to dust from light fixture, and ceiling fan installation, concrete dust from cutting/grinding grooves in concrete flooring, sawdust from woodworking in the wood shop, smoke from pipe soldering, and other miscellaneous exposures is greater for a person working in the maintenance department than the risk of exposure outside the workplace. Thus, we see no reversible error in the ALJ's determination that the risk, or hazard, of the aggravation of the claimant's disease was occupational in nature, and is compensable.
II.
The respondents next contend that there is not substantial evidence in the record to support the ALJ's determination that the claimant's compensation benefits should be apportioned 90 percent to his compensable occupational disease, and 10 percent to his non-occupational respiratory condition. We are not persuaded that the ALJ committed reversible error in his apportionment determination.
Here, the ALJ found that there was insufficient evidence in the record to justify apportionment to occupational exposures prior to the claimant's employment with the employer. The ALJ noted that there was some evidence of occupational exposures prior to the claimant's employment with the employer. However, the ALJ found that there was insufficient evidence that any such exposure contributed to the development and progression of the claimant's emphysema.
The respondents asserted in their post-hearing position statement that apportionment was governed by Anderson v. Brinkhoff. The respondents pointed out that Dr. Sandhaus stated that at least a component of the 90 percent of claimant's occupationally related lung condition was from occupational exposure he had prior to starting at the employer. Tr. (8/31/2009) at 174. Therefore, the respondents argued that there should be apportionment for occupational exposures the claimant suffered before coming to work for the employer here.
However, Dr. Sandhaus noted that his statement that a "component" of the disease came from occupational exposures the claimant had before coming to work for the employer here, was the best estimate he could give. Dr. Sandhaus was thus unable to quantify the amount of occupationally related lung condition that came from occupational exposures other than the employer.
In Cowin Co. v. Medina, 860 P.2d 535 (Colo. App. 1992), the court held that if the claimant proves the conditions of employment have proximately caused or aggravated a disease, the burden of showing the existence and extent of other causes for purposes of apportionment falls on the respondent. Further, the court held that the question of whether the employer has met its burden is a question of fact for the ALJ. Therefore, because the burden was on the employer to establish the existence and the extent of other causes for purposes of apportionment it is clear that the ALJ found that the employer failed to meet its burden. See Cowin Co. v. Medina, supra. We perceive no reversible error in that determination.
In their post-hearing position statement, the respondents also noted that Dr. Sandhaus testified that 10 percent of the claimant's disease was related to his non-occupational pneumonia. The respondents also argued that Dr. Sandhaus had admitted that if the claimant had a significant smoking history this would be injurious and up to 40 per cent of the claimant's disease would be due to smoking and an additional 10 percent to pneumonia. The respondents further argued that Dr. Clifford explained that the claimant's medical record documented a significant smoking history and that the apportionment of 50 percent was the minimum apportionment that should apply if the claimant's claim was found to be compensable.
However, the ALJ determined that while medical records in 2001 indicated that the claimant had a history of smoking, the claimant denied ever having smoked except for one cigarette as a young child and two marijuana cigarettes on later occasions. The ALJ found that the testimony regarding smoking was corroborated by the testimony of fellow employees who all testified they never witnessed the claimant smoking. The ALJ also found the claimant's testimony was corroborated by the testimony of Dr. Sandhaus who testified that he felt the claimant was being truthful in his statement that he was a non-smoker and how mistakes are often found in medical records. The ALJ concluded that the claimant's testimony that he was a nonsmoker was credible and persuasive. This is a finding of fact and because it is supported by substantial evidence in the record it is binding on us. Section 8-43-301(8), C.R.S.
In our view, the evidence certainly did not compel the ALJ to apportion a smaller liability to the respondents in this case. The ALJ credited the opinion of Dr. Sandhaus that 90 percent of the claimant's impairment was associated with his exposure at work and 10 percent due to prior respiratory infections. The ALJ found that the claimant's workers' compensation benefits should be apportioned 90 percent to his compensable occupational disease, and 10 percent to his non-occupational respiratory condition. In our view, because this percentage is supported by the evidence, the claimant is entitled to an award based upon it.
III.
The respondents contend the ALJ erred in his determination that the claim was not barred by the statute of limitations as provided for in § 8-43-103(2), C.R.S. The respondents argue that the ALJ's determination is not supported by substantial evidence in the record to support. We are not persuaded that the ALJ committed reversible error.
Section 8-43-103(2), C.R.S, provides that a claim shall be barred "unless within two years after the injury or after death resulting therefrom, a notice claiming compensation is filed with the division." This statute effectuates the so-called "discovery rule" under which the statute of limitations does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable nature of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).
The question of whether a claimant as a reasonable person should recognize the nature and seriousness of an injury is ordinarily one of fact for resolution by the ALJ. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S, Mastro v. Brodie, 682 P.2d 1162, 1169 (Colo. 1994); Cass v. Mesa County Valley School District, W. C. No. 4-629-629 (August 26, 2005); Hoaglund v. B B Excavating, W.C. No. 4-465-123 (September 13, 2001). This standard of review requires that we 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).
The ALJ found that although the claimant experienced symptoms from his Alpha-1 Antitrypsin Deficiency in 2001, he was able to perform all the duties of his employment until 2007. The ALJ further found that beginning in 2007 the claimant was unable to perform all of his job duties and began to experience loss of income. The ALJ, citing City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967), concluded that the claimant reasonably did not understand the seriousness and possible compensable nature of his injury until 2007, and the time for filing a claim did not begin to run until 2007.
The respondents, in their post-hearing position statement, argued that the claim was barred by the statute of limitations. The respondents contended that the statute of limitations applied because the claimant, or a reasonable person in the claimant's position, would have known or understood the possible compensable nature of his disease more than two year before he filed the claim on June 5, 2007.
The respondents argued that the claimant admitted, and his medical records in 2001 showed, that he suffered severe pulmonary dysfunction in 2001. The respondents point to evidence such as the claimant had a noticeable barrel chest in 2001 and had shortness of breath with labored breathing causing problems getting around work in 2000. The respondents also noted that the claimant had joined a support group for Alpha-1 patients in 2001. The respondents argued that the claimant was unable to climb a flight of stairs or walk across a parking lot in 2001. The respondents contended that based on this evidence that the onset of the claimant's disability was in 2001 and yet the claimant did not report the claim until June 5, 2007, well after the statute of limitations had run out.
The respondents point to evidence from their employee witness Mr. Scott that the claimant early on was unable to do all the maintenance jobs he would be expected to perform because of his breathing problems. The respondents argued that Mr. Scott testified that the claimant's labored breathing caused him problems getting around as early as 2000. However, we note that Mr. Scott testified on cross-examination that the first time he noticed the claimant was having any breathing difficulties such as shortness of breath was the end of 2006 or the beginning of 2007. Tr (11/20/2009) at 4-5. Mr. Scott further testified that the claimant first told him that he was having problems doing a part of his job because of breathing problems in the 2007 era. Tr (11/20/2009) at 6-7. Mr. Scott also testified that it was not until 2006 and 2007 that the claimant's condition affected his ability to do his job. Tr. (8/31/2009) at 256-257. Mr. Scott testified that despite the claimant's worsening condition he always completed all of his job duties. Tr. (8/31/2009) at 258.
The claimant testified that his lung condition did not prevent him from doing his job in 2001. Tr. (8/31/2009) at 58-59. However, by 2006 he became more tired at work. Tr. (8/31/2009) at 40. The claimant testified that he really began to slow down in 2007. Tr. (8/31/2009) at 41. The claimant asked that his hours be cut down to 32 hours a week in 2006. Tr. (8/31/2009) at 42.
In reaching his conclusions the ALJ cited City of Colorado Springs v. Industrial Claim Appeals Office 89 P.3d 504 (Colo. App. 2004). In City of Colorado Springs v. Industrial Claim Appeals Office the court of appeals determined that the "injury" referred to in the statute of limitations provision includes an occupational disease. The term "injury" has been construed to mean a compensable injury. City of Boulder v. Payne, supra; Henderson v. RSI, Inc., 824 P.2d 91 (Colo. App. 1991). Further, an occupational disease is compensable only if it results in disablement. Thus, the time of injury for a disability arising from an occupational disease is when the disability manifests itself. Therefore, the court in City of Colorado Springs determined that when an occupational disease is at issue, the limitation period in § 8-43-103(2) begins to run as of the date the claimant becomes disabled.
The courts have further held that an injury is not compensable where a claimant continues to work and to receive regular wages. Romero v. Indus. Comm'n, 632 P.2d 1052 (Colo. App. 1981). The onset of a disability occurs when the occupational disease impairs the claimant's ability to perform his or her regular employment effectively and properly or when it renders the claimant incapable of returning to work except in a restricted capacity. Leming v. Industrial Claim Appeals Office, 62 P.3d 1015 (Colo. App. 2002).
Here, the ALJ found that although the claimant experienced symptoms from his Alpha-1 Antitrypsin Deficiency in 2001, he was able to perform all the duties of his employment until 2007. Beginning in 2007, the claimant was unable to perform all of his job duties and also began to experience loss of income. The ALJ concluded that the claimant reasonably did not understand the seriousness and possible compensable nature of his injury until 2007. Therefore the ALJ found that the claim was filed within two years of the onset of his disability in 2007 and therefore his claim was not barred by the statute of limitations found in § 8-43-102(2).
In our view the ALJ applied the correct legal standard and his determination was supported by substantial evidence in the record. Therefore, we are not persuaded to interfere with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated January 12, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
LOWELL L LEVERENZ, 313 COLT DRIVE, LOVELAND, CO, (Claimant).
THE EVANGELICAL LUTHERAN GOOD SMARITAN SOC, LOVELAND, CO, (Employer).
SENTRY INSURANCE, Attn: CLAIRE PEPLINSKI, STEVENS POINT, WI, (Insurer).
THE LAW OFFICES OF MATT BUSCH, Attn: W. MATT BUSCH, JR., ESQ., LOVELAND, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: CRAIG R ANDERSON, ESQ., COLORADO SPRINGS, CO, (For Respondents).