Opinion
W.C. No. 4-507-822.
October 4, 2004.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers' compensation benefits. We affirm.
The claimant was employed as a customer service representative in July 2000 when she was hospitalized for liver problems. The claimant was subsequently diagnosed with Primary Biliary Cirrhosis. The claimant's employment required her to wipe counters with a foaming cleaner called "Trouble Spots."
Relying on the opinions of Dr. Phillips, the ALJ determined the claimant failed to prove by a preponderance of evidence that her illness was caused by an injurious exposure to Trouble Spots. Consequently, the ALJ denied the claim.
The claimant's Petition to Review contends the ALJ erred in giving greater weight to the opinions of Dr. Phillips than Dr. Roman. The claimant also alleged the testimony of a co-worker was not probative because the co-worker's assigned duties resulted in a lesser exposure to Trouble Spots.
The claimant's Brief in Support of the Petition to Review makes additional factual assertions concerning the chemical properties of Trouble Spots and the claimant's health before and after her exposure to the cleanser. The claimant argues these facts compel the finding of a causal connection between the employment and her liver disease.
The claimant also filed a response to the respondents' Brief in Opposition to the Petition to Review. The respondents move to strike the response brief. We deny the motion.
The claimant sustains a compensable occupational disease when the claimant's disease is the result of an injurious exposure occasioned by the nature of the work and does not come from a hazard to which the worker would have been equally exposed outside of the employment. Section 8-40-201(14), C.R.S. 2003. To prove a compensable disease it is not sufficient for the claimant to prove a "possible" causal connection between the employment and the medical condition for which benefits are requested. Rather, there must be evidence sufficient for the ALJ to find to a reasonable probability that the cause of the illness is work-related. See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968); Morrison v. Industrial Claim Appeals Office, 760 P.2d 654 (Colo.App. 1988).
Whether the claimant has sustained her burden of proof is a question of fact for resolution by the ALJ and we must uphold the ALJ's determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2003; Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). We note that medical evidence is neither required nor conclusive on the issue of causation. However, insofar as medical evidence is presented, it is the ALJ's sole prerogative to determine the probative value of the evidence and we may not substitute our judgment for that of the ALJ in resolving conflicts between medical experts. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); see also Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
The claimant has not provided a transcript of the hearing on July 1, 2004. Under these circumstances we are required to presume the ALJ's findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). The ALJ's findings are also supported by Dr. Phillips' toxicology report dated August 27, 2001 (respondents' hearing exhibit H). Dr. Phillips stated that even though OSHA cited the employer for failing to properly to train employees on the use of hazardous chemicals in the workplace, Trouble Spots is a "non-restricted use biocide for general purpose cleaning." Dr. Phillips also opined that medical literature does not support the claimant's assertion of a causal connection between the use of Trouble Spots and development of Primary Biliary Cirrhosis.
Further, Dr. Roman did not opinion that the probable cause of the claimant's liver disease was the claimant's use of Trouble Spots. Rather, Dr. Roman opined
"that toxic exposure to a cleaning solvent such as Trouble Spots on a daily basis with no adequate ventilation, gloves, or safety precautions could potentially cause liver damage and theoretically act as a chemical `trigger' in producing PRIMARY BILIARY CIRRHOSIS." (Emphasis in original)
(Claimant's exhibit 4). Thus, even if credited, Dr. Roman's opinions do not compel a finding the claimant presented sufficient evidence to establish the requisite causal relationship between her exposure to Trouble Spots and the development of Primary Biliary Cirrhosis. See Industrial Commission v. Riley, supra.
In reaching our conclusions we note that our review is limited to the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Thus, we have not considered the MSDA report on the chemical composition of Trouble Spots which the claimant submitted on appeal. For the same reasons, we are unable to consider the claimant's factual assertions on appeal which are not otherwise found in the documentary record.
Finally, the claimant's reliance on Deterts v. Times Publishing Co., 38 Colo. App. 48, 552 P.2d 1033 (1976) for the proposition that ALJ was required to resolve "any reasonable doubt" in favor of the claimant is misplaced. The court subsequently disapproved that principle in City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Moreover, § 8-43-201 C.R.S. 2003, provides that the "facts in a workers' compensation case shall not be interpreted liberally in favor of either the rights of the injured worked or the rights of the employer."
IT IS THEREFORE ORDERED that the ALJ's order dated, July 12, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Robert M. Socolofsky
Myra Wozniczka, Littleton, CO., T J Maxx, Littleton, CO., T J Maxx, Colorado Springs, CO., American Casualty Company of Reading Pennsylvania, Denver, CO, John Lebsack, Esq. and Ted A. Krumreich, Esq., Denver, CO., (For Respondents).