Opinion
W.C. No. 4-724-768.
February 19, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated September 30, 2009, that denied and dismissed the claimant's claim for compensation. We affirm.
The claimant worked installing and repairing cable television service at customer residences. On March 5, 2007 the claimant smelled cat urine while at a customer's residence. The claimant began coughing and experienced hoarseness after exiting the residence. The claimant's normal voice returned off and on and he sought medical attention. The claimant was diagnosed with various conditions including vocal cord dysfunction syndrome (VCDS). The ALJ found that the claimant had failed to prove that he suffered a psychological traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. Therefore, the ALJ denied and dismissed the claim.
I.
The claimant argues that the ALJ erred in determining that he was required to show that his exposure to the noxious odors of cat urine caused a psychological condition resulting in a "mental-physical" claim. The claimant instead argues that this claim is simply one in which the claimant experienced physical disability due to a physical exposure at work. The claimant also argues that ALJ erred in adopting Dr. Repsher's conclusion that the claimant suffered a "hysterical conversion reaction" which came under the broad category of somatization disorders. Therefore, the claimant argues it was error for the ALJ to treat the claim as a "mental-physical" claim to which § 8-41-301(2)(a) C.R.S. 2009 would apply. We are not persuaded by the claimant's arguments.
Initially we note that to establish a compensable injury, the claimant had the burden to prove by a preponderance of evidence that injury arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question whether the claimant met the burden of proof is one of fact for determination by the ALJ. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
Here, we reject the claimant's contention that his claim is not subject to the strictures of § 8-41-301(2)(a). In pertinent part § 8-41-301(2)(a) provides as follows:
A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist. For purposes of this subsection (2), "mental impairment" means a recognized, permanent disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involves no physical injury and consists of a psychologically traumatic event that is generally outside of a worker's usual experience and would evoke significant symptoms of distress in a worker in similar circumstances. A mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, job transfer, lay-off, demotion, promotion, termination, retirement, or similar action taken in good faith by the employer. The mental impairment that is the basis of the claim shall have arisen primarily from the claimant's then occupation and place of employment in order to be compensable.
The ALJ made the following findings relative to the special requirements of § 8-41-301(2)(a). The claimant suffered a psychological condition of VCDS, apparently triggered by smelling the cat urine odor. Dr. Repsher concluded that the claimant's hysterical conversion reaction was merely coincidental with smelling the cat urine. The temporal relationship points to the odor as the trigger. The claimant did not suffer a psychologically traumatic event that is generally outside of a workers' usual experience and would evoke significant symptoms of distress in a workers in similar circumstances. The record evidence does not demonstrate that the smell of the cat urine would cause similar symptoms in a reasonable person. The evidence shows only that the claimant suffered idiosyncratic symptoms.
As we read the claimant's brief he contests the finding of the ALJ that related directly to the special provisions of § 8-41-301(2)(a) by stating that the level of noxious odor within the residence could not be considered within the worker's usual experience because otherwise the claimant's co-worker would not have immediately left the house due to the odor.
Here the ALJ made the following pertinent findings of fact with record support. A co-worker of the claimant testified that March 5, 2007 was not the first or only time they were exposed to cat urine smells or bad smells in customer homes. Tr. at 13-14. The co-worker credibly testified that while the house he and the claimant went to on March 5, 2007 smelled very badly, he suffered no adverse effects from the exposure to the unpleasant odor. Tr. 20-21. In our view, this constitutes substantial evidence supporting the ALJ's determination. Therefore, we must uphold the ALJ's determination. Section 8-43-301(8), C.R.S. 2009.
As we understand the claimant's further argument it is that he experienced physical disability due to physical exposures at work and the special provisions of § 8-41-301(2)(a) therefore do not apply. The claimant points out the temporal relationship between the spontaneous hyperfunctioning of the false vocal cords and the claimant's exposure to the cat urine odor.
Here the ALJ found that the present case was a "mental-physical" case. In this regard, the ALJ made the following pertinent findings with record support. The claimant did not suffer from an irritant-induced injury to his upper respiratory track as a result of the inhalation of care urine odors on March 5, 2007. Exhibit J at 52-53 Repsher Depo. at 16 23-24 26-27. The claimant's exposure to cat urine did not directly cause any physical injury to the vocal cords or other upper respiratory tissue. Exhibit J at 52-53 Repsher Depo. at 16 26-27; Claimant's Exhibit at 42. The claimant had preexisting problems with hoarseness and cough after exposure to odors. Tr. 50 67 Exhibit J at 51 Repsher Depo. at 16 26-27. The record evidence failed to demonstrate that the exposure to the cat urine directly caused any physical injury to the vocal cords or other upper respiratory tissue. Exhibit J at 52-53 Repsher Depo. at 16 26-27.
In our view, there is substantial evidence in the record to support the ALJ's conclusion that the present case is a "mental-physical" case. As noted above, because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). Therefore, we are not persuaded that the ALJ erred in determining that the claim was a "mental-physical" case and that the claimant was required to meet the requirements of § 8-41-301(2) for a claim of mental impairment.
As we understand the claimant's arguments he also contends that the ALJ erred in treating the claim as one that must meet the requirements of § 8-41-301(2) because that statute does not apply to cases where the claimed disability is based on emotional or psychological causes that result in a physical injury. The claimant citing Brown v. Family Inn of Colorado Springs, W. C. No. 4-271-352 (July 10, 1997), argues that his claim is based on a physical component which independently contributes to the injury and therefore the claim is not subject to the requirements of § 8-41-301(2). In support of this argument he also cites DuShane v. Beneficial Colorado, Inc., W.C. No. 4-218-217 (July 17, 1996), affd., DuShane v. Beneficial Colorado, Inc., (Colo. App. No. 96CA1404, December 27, 1996). Under DuShane, the claimant argues that although mental-mental claims are subject to the special proof requirements, if there is a physical component to the injury, the restrictions contained in the mental impairment statute are not implicated.
We note that in DuShane and Brown the Panel and later the Colorado Court of Appeals relied on Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo. App. 1996). However, after Oberle v. Industrial Claim Appeals Office was decided in 1996, the General Assembly amended the statute in 1999. In our view, the controlling authority now is Esser v. Industrial Claim Appeals Office, 8 P.3d 1218 (Colo. App. 2000), affd 30 P.3d 189 (Colo. 2001); Hughes-Choyce v. The Childrens Hospital, W.C. No. 4-444-713 (October 24, 2002); affd sub nom. Hughes-Choyce v. Industrial Claim Appeals Office No. 02CA2274 (Colo. App. September 11, 2003) (not selected for publication); see also Felix v. City and County of Denver W.C. Nos. 4-385-490 4-728-064 (January 06, 2009).
In Esser, there was no physical injury that precipitated the claimant's chest pain and high blood pressure that apparently resulted only from the mental stress placed upon her. The court ruled that even if these conditions could reasonably be described as physical injures, they were the results, not the causes, of the mental stimuli to which the claimant was subjected. The court concluded that therefore, the claimant was required to meet the standard of proof established by § 8-41-301(2) to sustain her claim. In Hughes-Choyce v. The Childrens Hospital, supra, the Panel noted that the General Assembly did not intend to exempt cases from the reach of the mental impairment statute simply because the mental impairment causes some physiological manifestation or injury. Consequently, in our view the ALJ, in his "mental-physical" analysis of the case correctly applied the requirements of § 8-41-301(2).
II.
The claimant also contends that the ALJ erred in failing to accept into evidence an article on vocal cord dysfunction. Claimant's Exhibits at 46-69. The claimant contends the article should have been admitted into evidence as a learned treatise under the provision of C.R.E. 803(18). We are not persuaded that the ALJ abused his discretion in excluding the article.
The claimant initially sought to admit the article at the inception of the July 23, 2009 hearing. Tr. at 9. The article was not part of a medical report but was provided in lieu of such a report. Tr. at 8-9. The respondents objected on the grounds that a proper foundation had not been laid for the introduction into evidence of the article. This objection was sustained. The claimant later sought to admit the article at the time of the deposition of Dr. Repsher based on Dr. Repsher's testimony. Repsher Depo. at 59-60. The respondents objected to its admission again on the ground that an appropriate foundation had not been laid for its admission. The ALJ in his Summary Order of September 23, 2009 sustained the respondents' objection to the claimant's renewed offer of the article.
We initially note that the ALJ has broad discretion in the conduct of evidentiary proceedings. IMPC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988). We therefore review the ALJ's ruling in this instance under the abuse of discretion standard. See Rennaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo. App. 1999) (reviews of orders concerning the conduct of administrative hearings are subject to the abuse of discretion standard). An abuse of discretion does not occur unless the ALJ's order is beyond the bounds of reason, as where it is unsupported by the record or contrary to the law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. App. 1993).
Section 8-43-210, C.R.S. 2009, authorizes the admission of physicians' reports without formal identification. However, we do not under the claimant to be arguing that the article here in question is a physician's report.
Section 8-43-210, C.R.S. 20009 contains the basic evidentiary provisions applicable to workers' compensation claims in Colorado. It states in pertinent part that the Colorado rules of evidence and requirements of proof for civil nonjury cases in the district courts shall apply in all hearings. State, Dept. of Labor and Employment v. Esser 30 P.3d 189 (Colo. 2001). CRE 803 concerns certain exclusions to the hearsay rule. CRE 803 (18) defines learned treatises as follows:
To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence and may be received as exhibits, as the court permits
Here the only expert to testify regarding the article was Dr. Repsher. Far from testifying that the article was a reliable authority Dr. Repsher instead testified that the article was not a learned treatise accepted by the medical community. Repsher Depo. at 41-43 57-58. Dr. Repsher further stated that the article was a "fraud." Repsher Depo. at 43. Under these circumstances we perceive no error in sustaining objections to the entry into evidence of the article.
The claimant has also attached to his brief a portion of the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition DSM-IV, which deals with somatization disorder. Dr. Repsher testified that the claimant had a classic clinical presentation of VCDS, which is a psychological condition. Repsher Depo. at 7 17 18-19 23-24. The claimant argues that the opinions of Dr. Repsher are not consistent with the diagnostic criteria requirements in the DSM-IV for a somatization disorder.
However, we do not find that the DSM-IV was placed into the record before the appeal was filed. Our review is restricted to the record before the ALJ, and the factual assertions made on appeal by the claimant may not substitute for evidence, which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo. App. 1987); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988); See Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo. App. 1995). Therefore, we have not considered the attachment to the claimant's brief nor have we considered the arguments based upon the DSM-IV.
The claimant also argues that the ALJ wrongly relied upon the opinions of Dr. Repsher. The claimant contends the opinions of Dr. Repsher were only conjecture and not scientifically or medically based. However, 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).
To the extent the claimant's argument on appeal is that Dr. Repsher's opinions constituted the sort of "novel" expert testimony that should have been ruled inadmissible as insufficiently reliable, we disagree. See People v. Shreck, 22 P.3d 68 (Colo. 2001); People v. Ramirez, 155 P.3d 371 (Colo. 2007) (discussing threshold standards of admissibility of expert evidence under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993) and CRE 702 and concluding that the Colorado rules of evidence provide the standard for admissibility of expert evidence).
In our view the opinions of Dr. Repsher are not predicated on the type of novel scientific evidence, which formerly required the application of the Frye or Daubert tests. Dr. Repsher is board certified in internal medicine and pulmonary medicine. Repsher Depo. at 40. He opined that there was no objective evidence of any toxic exposure on March 5, 2007 or any evidence of any upper or lower respiratory tract disease and that the claimant suffered VCDS. In our view, these opinions are within the range of expected scientific evidence to be presented by a medical expert.
The ALJ credited the opinions of Dr. Repsher as persuasive. We may not interfere with the ALJ's determination that expert testimony should be admitted unless it constitutes a clear abuse of discretion. Hall v. Home Furniture Co. 724 P.2d 94 (Colo. App. 1986). As noted previously, the standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is not supported by the record or applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Moreover, because the fact finder has a "superior opportunity" to assess the competence of the expert and usefulness of the opinions, the standard of review is "highly deferential." Ramirez, 155 P.3d at 380. We perceive no abuse of discretion in the ALJ's admission and reliance upon the opinions of Dr. Repsher. We have reviewed the claimant's additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated September 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciu
____________________________________ Thomas Schrant
BENITO GRANADOS, PUEBLO, CO, (Claimant).
COMCAST CORPORATION, Attn: ELAINE PADILLA, DENVER, CO, (Employer).
LIBERTY MUTUAL INSURANCE COMPANY, Attn: MOLLY TERRONEZ, IRVING, TX, (Insurer).
STEVEN U MULLENS, PC, Attn: STEVEN U MULLENS, ESQ., PUEBLO, CO, (For Claimant).
LEE KINDER, LLC, Attn: TIFFANY SCULLY KINDER, ESQ., 3801 E FLORIDA AVE, DENVER, CO, (For Respondents).
COMCAST CORPORATION, Attn: ELAINE PADILLA, PUEBLO, CO, (Other Party).