Opinion
W.C. No. 4-789-425.
July 30, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated March 30, 2010 that denied and dismissed the claim for compensation. We affirm.
The claimant worked for various employers at the same industrial plant in Pueblo for 34 years. For most of that time, he worked as a grinder. The claimant started working for the employer here on January 7, 2008. The claimant only worked for this employer as a production supervisor. The claimant did not join as respondents any previous employers for whom he worked as a grinder at the plant. The ALJ found the claimant had proven that he suffered from interstitial lung disease as a result of his many years of work for multiple employers as a grinder. However, the ALJ also found that the claimant had not proven by a preponderance of the evidence that he sustained his occupational disease as a natural consequence of his work as a production supervisor for the employer against whom this claim was brought. The ALJ denied the claim for benefits brought against this employer and its insurer.
The claimant appeals contending the ALJ showed a lack of understanding of the intricacies of occupational disease claims in the State of Colorado. The claimant argues in making the determination that he could not find the work the claimant did for this employer as a trainer was of sufficient length to cause the condition, the ALJ misunderstood Union Carbide Corp. v. Industrial Commission 196 Colo. 56, 581 P.2d 734 (Colo. 1978) and erred as a matter of law. We disagree with the claimant's contention.
Section 8-40-201(14), C.R.S., defines an occupational disease as one which results directly from the conditions under which work was performed, is a natural incident of the work, can fairly be traced to the employment as a proximate cause, and does not come from a hazard to which the worker would have been equally exposed outside of the employment. The statute contemplates that the 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." Anderson v. Brinkhoff, 859 P.2d 819, 824(Colo. 1993). 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.
Where the claimant suffers an occupational disease and is exposed to the hazards of the disease during successive employments, liability for the occupational disease is governed by the "last injurious exposure rule." Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo. App. 1995). Section 8-41-304(1), C.R.S., provides that the employer in whose employment the claimant was last "injuriously exposed" and suffered a substantial, permanent aggravation of the disease is solely liable for all compensation benefits due on account of the disease. The purpose of the rule is to relieve the claimant of the burden of trying to prove the exact contribution from multiple employments. Union Carbide Corp. v. Industrial Commission, supra.
In Monfort, Inc. v. Rangel 867 P.2d 122 (Colo. App. 1993), the court explained that the addition of the phrase "substantial permanent aggravation" to § 8-41-304(1) did not eliminate or change the last injurious exposure test for causation as interpreted in Union Carbide and Royal Globe v. Collins 723 P.2d 731 (Colo. 1986). Rather, the addition of that phrase to the statute imposing liability upon the last employer minimizes the harsh effects of that statute only to the extent that liability now is limited to those employers in whose employ there has been exposure to a harmful concentration of the hazard and the effect of such exposure is a substantial and permanent aggravation of the previous condition. The court further explained that under § 8-41-304(1), the length of the period of employment with a particular employer continues to be immaterial to a finding of liability. Instead, the focus now is on both the harmful nature of the concentration of the exposure and the magnitude of the effect of such exposure. Further, as under Royal Globe, the employee is not required to ascertain the exact amount that each employer contributed in causing his occupational disease. Nor is he or she required to pinpoint exactly which employer most injuriously exposed the claimant. Instead, the employee is allowed to recover from the last employer in whose employ the last injurious exposure occurred and resulted in an aggravation that is both permanent and substantial.
The claimant argues that the ALJ focused on the length of time that the claimant, as a supervisor, performed the work of training grinders and that this evidences a misunderstanding of the law. We are not persuaded that the ALJ misunderstood the law on occupational disease. In his order, the ALJ citing Monfort, Inc. v. Rangel 867 P.2d 122 (Colo. App. 1993), noted that a claimant must show that, while working for the employer, he sustained a sufficient exposure to an injurious agent that, over time, would have caused his occupational disability. The ALJ further explained that the test is the concentration of the exposure rather than the length of time of the exposure; nevertheless, the claimant must prove the requisite concentration of exposure.
We read the ALJ's order as recognizing that the length of the period of employment with a particular employer continues to be immaterial to a finding of liability. We do not read the ALJ's order, as urged by the claimant, as a case such as in Union Carbide where it was established that there was a concentration of toxic material sufficient to cause the disease in the event of prolonged exposure to such concentration and thus represent an "injurious exposure."
Here the ALJ made the following relevant findings of fact. It could not be inferred that the claimant's four plus years of work for the employer as a production supervisor involved exposure to sufficiently high level of aluminum tungsten carbide with cobalt, or zirconium dust so that it would cause his lung disease. The claimant used a grinder only for short periods of time to train new employees. The claimant spent 50 percent of his time in the general "frog shop" area, but spent the other 50 percent of his work day in his office. The medical opinions of Dr. Repsher, Dr. Mayer and Dr. Shapiro all addressed the relationship between the claimant's grinder employment and his lung disease. Although those opinions are credible and persuasive, those physicians did not address the issue of causation due to the claimant's supervisory employment.
The claimant relies heavily on his contention that the ALJ misinterpreted the case of Union Carbide Corp. v. Industrial Commission 196 Colo. 56, 581 P.2d 734 (Colo. 1978). In Union Carbide, the claimant worked as a uranium miner for years and died of lung cancer resulting from exposure to radioactive materials. The dispute was between his last two employers over which of them was liable. Union Carbide was the claimant's last employer and hired him subject to the provision that he pass the pre-employment physical examination. The claimant actually worked only eight days for Union Carbide before the results of the physical examination were known. Because the sputum test showed the onset of lung cancer, the claimant was dismissed. During his eight days of employment, the claimant worked forty-eight hours, twenty-six of those underground, and was exposed to 0.15 Working Level Months (WLMs) of radiation. This exposure was estimated to be less than one ten-thousandth of his total exposure to radiation during his mining career.
In Union Carbide the court interpreted "injurious exposure" to be "a concentration of toxic material which would be sufficient to cause the disease in the event of prolonged exposure to such concentration." The court considered the injurious nature of the radiation concentration, "regardless of the length of the exposure required actually to cause the disease. The court noted that it approved this test because it focuses on the harmful nature of the concentration of the radioactive exposure if continued indefinitely at that level. The court determined that this interpretation is consistent with the statutory definition of "last injurious exposure," which renders immaterial to the finding of liability the length of the period of employment with that particular employer. In contrast, the "last injurious exposure" rule looks at the concentration of radiation received during the last employment to determine whether the employee was exposed to a harmful quantity.
The evidence in Union Carbide Corp. v. Industrial Commission 196 Colo. 56, 581 P.2d 734 (Colo. 1978) was that the exposure the claimant accrued within a period of 24 hours of mining underground, if continued at that level for an indefinite period of time would cause lung cancer. Therefore, the court determined that the claimant received a last injurious exposure to radiation at the Union Carbide mine.
In contrast, here as we read the ALJ's order he found that the claimant had failed to demonstrate that the exposure the claimant received as a supervisor, if continued at that level for an indefinite period of time, would have caused interstitial lung disease. Consequently, the claimant was not exposed to a harmful concentration of the hazard as a supervisor. Therefore, the claimant did not receive a last injurious exposure in his work for the employer here and his claim against that employer must be dismissed. This determination is factual and therefore we are bound by the ALJ's findings if supported by substantial evidence. Section 8-43-301(8).
The ALJ made the following relevant findings of fact. We note that we identify certain of the findings by the number used by the ALJ in his order. This is for purposes of identification of the factual disputes raised by the claimant in his brief on the issue of whether the record supports the ALJ's findings of fact.
In Finding No. 1 the ALJ made the following findings. The claimant's testimony dealt largely with the functions he performed as a grinder. This work was considerably different from the functions he performed as a supervisor for the employer. As a production supervisor, the claimant used a grinder only for short periods of time to train new employees, particularly in September and October 2008. Even then, grinding was limited to a few minutes at a time during only a portion of a day and only over about a two-week period. The claimant spent 50 percent of his time in the general "frog shop" area, but spent the other 50 percent of his work day in his office. We note that the frog shop is where the central component was made up and grinders were used. Dillard Depo. at 7.
On the findings made by the ALJ in Finding No. 1, the claimant contends that he testified that he was constantly exposed to the fumes and dust from the grinding and cutting that was performed as a supervisor for the employer. The respondents contend and the ALJ found that the claimant's testimony only dealt with the functions he performed as a grinder.
We note the following from the record. At the beginning of his testimony, the claimant identified his job for the employer as a training supervisor, which involved training people to fit-grind castings. Tr. at 13-14. Then the claimant was asked a series of questions involving his occupation as a "grinder" that he had listed as his occupation in his claim for compensation. Tr. 15. In response to questions involving his work as a grinder, the claimant went into considerable detail about his duties and his exposure to dust. Tr. 15-20. However, the claimant did testify that throughout his 34-35 years at the plant he was exposed to the same type of dust. Tr. at 27. The claimant also testified that he was exposed to the machine used for cutting continuously throughout the day. Tr. 29.
It is not entirely clear from the claimant's testimony whether he was testifying about exposure he had during his time as a grinder or as a supervisor. However, the ALJ concluded the claimant's testimony dealt largely with the functions he performed as a grinder and this work was considerably different from the functions he performed as a supervisor for the employer. In our view these are reasonable inferences drawn from the claimant's testimony and are supported by substantial evidence. To the extent the claimant relies on his own testimony, it was for the ALJ to resolve any ambiguity in that testimony.
In addition, the Human Resources Manager for the employer testified regarding the claimant's work for the employer as a production manager. Dillard Depo. at 5. The manager testified that the claimant's duties as a supervisor involved 50 percent of the time in meeting in the front office or in the supervisor's office performing various administrative tasks. Dillard Depo. at 5. The remaining 50 percent of the claimant's time was spent on the shop floor or going around the yard. Dillard Depo. at 6 35. The manager explained that the claimant was involved in some training which required him to operate a grinder. Dillard Depo. at 11. This training would require several minutes of demonstration and then watching for several minutes. Dillard Depo. at 13. On average, the supervisor would be extensively involved with training for two weeks. Dillard Depo. at 12.
The testimony of the manager, along with the claimant's testimony, constitute substantial evidence supporting the specific findings in the ALJ's Finding No. 1. The ALJ's finding is also supported by the medical record of Dr. Mayer who took a history that the claimant's functions were considerably different as a supervisor. Exhibit B at 32.
The claimant further contends that the ALJ erred in Finding No. 3 in determining that vapors from the cutting area were only blown over where the "Claimant's grinding bench" was located. The claimant alleged that the fumes blew right at the claimant's location, which was the same location for the entirety of the 35 years including the last 5 years with the employer. Our review of the ALJ Finding No. 3 reveals, contrary to the claimant's characterization of the finding, that the ALJ found that vapor from water-soluble oil coolant sprayed on the planing surface was "blown into claimant's grinding station." This finding is supported by the testimony of the Manger. Dillard Depo. at 22.
The claimant argues that having found that the medical evidence showed that the exposures while working in grinding were sufficient to cause the disease the ALJ erred in finding that the employer was not responsible for the claimant's occupational disease. We do not agree.
On the issue of medical evidence, the ALJ credited the opinions of Dr. Repsher, Dr. Mayer and Dr. Shapiro and found them to be credible that there was a relationship between the claimant's employment as a grinder and his lung disease. However, the ALJ noted that these physicians did not address the issue of causation due to the claimant's supervisory employment. The claimant contends that this finding is totally unsupported by the record. We disagree.
The claimant directs our attention to the opinions of Dr. Mayer and Dr. Repsher who both opined that the claimant's occupational lung disease was caused by his work. However, the claimant does not identify any medical report or testimony establishing a causal link between the claimant's lung disease and his specific duties as a supervisor.
Dr. Mayer expressed the opinion that the claimant's occupational lung disease was due to his work at the employer. Exhibit 39 at 32 Dr. Mayer seemed to be under the impression that the claimant had essentially done the same job although noting in a subsequent section that he worked as a supervisor, which involved paperwork. Exhibit 39 at 21. In any event, we do not find an opinion clearly expressed by Dr. Mayer on the causal connection between the claimant's work as a supervisor and his lung disease. Nor has the claimant pointed us to any.
Dr. Repsher initially expressed the opinion that the claimant had pneumonitis with no evidence of hard metal lung disease. Exhibit 30 at 3. However, Dr. Repsher changed his opinion and opined that the claimant had interstitial lung disease from his work at the employer mechanically grinding manganese steel track parts. Exhibit 30 at 6. In his deposition, Dr. Repsher testified that he took a history from the claimant of 34 years with the company performing the job as a grinder. Repsher Depo. at 5 31. Again, the claimant has not pointed to a clear opinion expressed by Dr. Repsher on the causal connection between the claimant's work as a supervisor and his lung disease, nor are we aware of any.
Dr. Shapiro opined that claimant had progressive interstitial lung disease Exhibit E at 103. Dr. Shapiro noted the claimant worked as a manganese grinder and was exposed to dust. Exhibit 28 at 1. Dr. Shapiro opined that his interstitial lung disease was related to this exposure. Exhibit 28 at 1. However, the claimant again has not pointed to a definitive opinion from Dr. Shapiro on the causal connection between the claimant's work as a supervisor and his lung disease, nor are we aware of any. In our view, the medical record supports the ALJ's determination that the physicians did not address the issue of causation due to the claimant's supervisory employment.
As noted above, the lay evidence supports the ALJ's findings of fact. These findings, in combination with the failure of the medical evidence to support a causal connection between the claimant's supervisory work and his lung disease, support the ALJ's conclusion that the claimant did not prove by a preponderance of the evidence that he sustained his occupational disease as a natural consequence of his work as a production supervisor or that he sustained a last injurious exposure. The ALJ, noting that the claimant never worked as a grinder for the employer, with record support, refused to infer that the claimant's four plus years of work for the employer as a production supervisor involved exposure to sufficiently high levels of aluminum, tungsten carbide with cobalt, or zirconium dust so that it would cause his lung disease.
In our view, the ALJ's findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, the ALJ's findings are supported by substantial evidence in the record and the findings support the conclusion that the claimant failed to prove that he suffered an occupational disease as a natural consequence of his work for the employer as a production supervisor or that he sustained a last injurious exposure. The ALJ correctly applied the law and did not err in denying benefits. Accordingly, we perceive no basis on which to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 30, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
JOHN GUTIERREZ, 1250 YERBA SANTA DRIVE, PUEBLO, CO, (Claimant).
NORTRAK, C/O: VAE NORTRAK NORTH AMERICA INC, PUEBLO, CO, (Employer).
WAUSAU UNDERWRITERS INSURANCE, Attn: KIMBERLY TRAVIS, IRVING, TX, (Insurer).
STEVEN U. MULLENS, PC, Attn: ROBERT W. TURNER, ESQ., COLORADO SPRINGS, CO, (For Claimant).
LAW OFFICES OF RICHARD P. MYERS, Attn: DAVID KROLL, ESQ., DENVER, CO, (For Respondents).