Opinion
W.C. No. 4-203-686
August 5, 1996
FINAL ORDER
The respondents seek review of orders entered by Administrative Law Judge Friend (ALJ) dated May 8, 1995, and April 2, 1996. We affirm.
Following a hearing in September 1994, the ALJ determined that the claimant suffers from a very rare disease diagnosed as "hypoplastic anemia with myelofibrosis, which is a type of non-lymphocytic leukemia." The ALJ's determination was based upon the opinions of Dr. Goldstein which he found credible and persuasive. The ALJ also credited Dr. Goldstein's opinion that myelofibrosis is caused by benzene exposure.
While working for the Goodyear Tire Rubber Company (Goodyear) the claimant was exposed to benzene. The ALJ determined that the claimant's occupational exposure to benzene was significantly greater than his exposure to benzene outside of work. Therefore, the ALJ determined that the claimant's disease was either caused or aggravated by his industrial exposure to benzene. However, the ALJ did not award or deny any benefits.
In January 1995 the respondents petitioned for an order reopening the claim to present Dr. Gray's opinion that the claimant does not have hypoplastic anemia and that myelofibrosis is not a type of non-lymphocytic leukemia. The ALJ denied the petition in an order dated March 8, 1995.
Pursuant to the parties' joint motion, the ALJ entered a final order on April 2, 1996. The April order restated the ALJ's prior findings of fact, and required the respondents to pay for the claimant's medical treatment from Dr. DiBella, the authorized treating physician.
I.
On review, the respondents contend that the record does not contain substantial evidence to support the ALJ's finding of a causal relationship between the claimant's occupational benzene exposure and his disease. In support, the respondents cite the testimony of Dr. Becker that there are no scientific studies to support Dr. Goldstein's hypothesis that benzene exposure increases the risk of myelofibrosis. We disagree.
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). The substantial evidence test requires that we defer to the ALJ's credibility determinations and his assessment of the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the ALJ resolved the conflicts in the medical evidence concerning the cause of the claimant's disease by crediting the opinions of Dr. Goldstein over the contrary opinions of Dr. Becker. We have no authority to interfere with this determination, and decline the respondents' invitation to do so. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Furthermore, Dr. Goldstein's testimony contains substantial evidence to support the ALJ's finding that the claimant established a causal connection between his employment and his disease. Consequently, it is immaterial that Dr. Becker's testimony, if credited, might support a contrary result.
Dr. Becker and Dr. Goldstein agreed that the claimant has myelofibrosis. (Tr. pp. 54, 97). According to Dr. Becker "myelofibrosis" is the scarring of bone marrow, and there is an association between benzene exposure and bone marrow problems. (Tr. pp. 55, 56, 67). Dr. Goldstein stated that "myelofibrosis" is really a "non-lymphocytic leukemia," and both he and Dr. Becker agreed that there is medical evidence linking benzene exposure with leukemia. (Tr. pp. 87, 97, 98).
Dr. Goldstein also diagnosed the claimant as suffering from hypoplastic anemia. In so doing, Dr. Goldstein stated that he and Dr. Becker applied different definitions to the term "aplastic anemia." (Tr. p. 99, 109). Specifically, Dr. Goldstein admitted that the claimant's red blood cell count indicates that he is not "anemic in the true sense of the word." (Tr. pp. 98, 108). However, Dr. Goldstein stated that "hypoplastic anemia" means that the bone marrow is not functioning as well as it ought," and that the claimant is anemic as that term is broadly used. (Tr. p. 99). Although Dr. Becker disagreed with the diagnosis, he conceded that there is medical evidence linking aplastic anemia with benzene exposure. (Tr. pp. 76, 77, 99). Therefore, Dr. Goldstein opined that the claimant's condition is the result of his occupational benzene exposure. Furthermore, Dr. Goldstein testified that the absence of scientific studies verifying the causal connection between myelofibrosis and benzene is due to the very rare nature of the disease which makes it almost impossible to study. (Tr. pp. 100, 110).
II.
The respondents also contend that the ALJ erred in failing to reopen the claim on the grounds of error or mistake. The respondents argue that it was necessary to present Dr. Gray's letter to establish that the ALJ was factually incorrect in his determination that myelofibrosis is a form of non-lymphocytic leukemia, and that the claimant has "hypoplastic anemia." In support, they rely on Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989).
As we previously stated, the ALJ did not enter a final order within the meaning of § 8-43-301(2), C.R.S. (1995 Cum. Supp.), until April 1996. Consequently, at the time of the respondent's petition, the claim was not subject to the reopening provisions of § 8-43-303 C.R.S. (1995 Cum Supp.). Accordingly, the respondent's petition was actually a motion to reopen the presentation of evidence.
The ALJ has discretionary authority to order the taking of additional evidence following the apparent completion of a hearing. Section 8-43-207(1)(j), C.R.S. (1995 Cum. Supp.). Because this authority is discretionary, we may not interfere absent an abuse of discretion. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
In denying the respondents' motion the ALJ implicitly rejected the notion that Dr. Gray's report was "newly discovered" evidence which could not have been presented at the September 1994 hearing through the exercise of due diligence. Cf. Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808 (1969). Neither was the ALJ persuaded that Dr. Gray's report was potentially "outcome determinative." Rather, the ALJ found that Dr. Gray's opinion was similar to Dr. Becker's opinions concerning the cause of the claimant's disease, and that he already rejected Dr. Becker's opinions in favor of Dr. Goldstein. Consequently, we perceive no abuse of discretion in the ALJ's refusal to grant an additional hearing to present the Dr. Gray's opinions. Compare, Curry v. Industrial Commission, 672 P.2d 513 (Colo. 1983) (failure to consider late submitted evidence of critical importance and dispositive of ultimate question was abuse of discretion); Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).
Furthermore, the respondents' reliance upon Standard Metals is misplaced. In Standard Metals the court held that new developments in medical research which linked renal disease to mining work cast doubt on the ALJ's original factual determination that there was no causal connection between the claimant's injury and his work as a miner. The court held that these medical advances justified reopening the claim.
Unlike the facts in Standard Metals this claim does not involve medical advances which were unavailable at the time of the hearing. Dr. Gray merely stated that she reviewed Dr. DiBella's records in reaching her opinions concerning the claimant's diagnosis. The respondents' remaining arguments on this issue do not alter our conclusion.
IT IS THEREFORE ORDERED that the ALJ's orders dated May 8, 1995, and April 2, 1996 are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed August 5, 1996 to the following parties:
Charles Churchill, 16330 E. Bails Pl., Aurora, CO 80017
Goodyear Tire Rubber Co., 6395 E. Evans, Denver, CO 80222-5897
Travelers Insurance Co., Attn: Debra Shoemaker, P.O. Box 173762, Denver, CO 80217-5980 Lawrence D. Blackman, Esq. Jordan S. Levine, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
Janet L. Frickey, Esq., 940 Wadsworth Blvd., #400, Lakewood, CO 80215 (For the Claimant)
BY: _______________________