Opinion
W.C. No. 4-704-673.
April 24, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated October 10, 2007, that denied and dismissed the claim for compensation. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant worked a number of years for the employer operating a "slitter machine" that converted large rolls of tape into small rolls of tape. The claimant experienced left hip and buttock pain that radiated down his left leg. The claimant did not recall any specific incident that caused his pain. The claimant's back problems were caused by the natural progression of his preexisting degenerative disc disease. The claimant's duties did not cause, intensify, or to a reasonable degree, aggravate his low back condition. The claimant did not demonstrate that the hazards associated with his employment were more prevalent than in everyday life or in other occupations. The ALJ concluded that the claimant failed to establish by a preponderance of the evidence that the claimant suffered an occupational disease during the course and scope of his employment.
I.
The claimant contends that the ALJ's factual findings are inconsistent, incomplete and insufficient to permit appellate review. The claimant also notes that the ALJ found that Dr. Reichhardt opined that the claimant's degenerative disc disease could have been caused by non-work exposures that claimant experienced during the course of daily living. The claimant argues that ALJ erred because although the ALJ apparently relied upon this opinion, the order does not reveal what hazards or exposures he determined caused or aggravated the claimant's degenerative disc disease. Therefore, the claimant argues, the order is insufficient to permit appellate review. We disagree that the ALJ committed reversible error in this regard.
Section 8-40-201(14), C.R.S. 2007, 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 requirement that the hazard not be one to which the claimant was equally exposed outside of employment effects the "peculiar risk" test and serves to insure that the disease is occupational in origin. Anderson v. Brinkhoff 899 P.2d 819, 822-823 (Colo. 1993).
The question 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. 2007. 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); Gale v. United Parcel Service, W. C. No. 4-606-010 (June 16, 2005).
Here, Dr. Reichhardt testified regarding certain hazards to the claimant's degenerative disc disease that he was exposed to outside of his employment. These included getting out of bed, his morning routine of grooming and bathing, with associated bending and twisting, reaching into low cupboards, getting in and out of a vehicle, picking things up off the floor, yard work or house work. Tr. (9/17/07) at 50-51. The ALJ then found that Dr. Reichhardt had stated that the claimant's degenerative disc disease could have been caused by non-work exposures that the claimant experienced during the course of daily living. Finding § 13 at 4. In our opinion, it was not necessary that the ALJ determine what hazards or exposures outside of the claimant's work caused or aggravated the claimant's degenerative disc disease because the claimant has the burden of proof to establish that the conditions of the employment were a direct and proximate cause of the alleged occupational disease. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
Here, as the ALJ specifically recognized, if the claimant succeeds in establishing that the hazards of employment caused, intensified or aggravated a pre-existing disease process, the burden shifts to the respondents to establish both the existence of non-industrial causes, and the extent to which they contribute to the disability and need for treatment. See Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992); Vigil v. Holnam Inc. W. C, Nos. 4-435-795 4-530-490 (August 31, 2005). However, here the ALJ found, with record support, that the claimant's duties, as a slitter operator did not cause, intensify, or to a reasonable degree, aggravate his low back condition. Findings of Fact, Conclusions of Law, and Order at 4, ¶ 13 (hereinafter "Order"). Dr. Reichhardt testified that the claimant's job activities did not aggravate his preexisting degenerative disc disease or place him at an increased risk for developing degenerative disc disease. Tr.(9/17/2007) at 51; Exhibit O at 37. Therefore, the burden did not shift to the respondents to establish the existence of non-industrial causes nor was there need for the ALJ to make specific findings identifying the non-industrial causes that might have caused the claimant's condition.
We are also unpersuaded by the claimant's argument that under Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949) the ALJ erred in not concluding that the claimant suffered an occupational disease because work activities caused the claimant pain. Contrary to the claimant's argument, Merriman does not hold that the mere occurrence of pain caused by work activities establishes a claim for an occupational disease. In Merriman the claimant suffered a compensable slip and fall, following which he experienced pain in his lumbar spine. He underwent surgery to relieve those symptoms; however, the doctors subsequently determined that the pain was caused by a condition of his kidneys rather than by the compensable accident. Nonetheless, because the injury precipitated the disability from the kidney disease, the respondents were liable for the surgery. In Merriman, however, unlike in the present case, there was a factual finding that the compensable injury aggravated the underlying condition and in doing so required the surgical treatment. As we have previously stated: "Pain is a typical symptom caused by the aggravation of a pre-existing condition. However, an incident which merely elicits pain symptoms caused by a pre-existing condition does not compel a finding that the claimant sustained a compensable aggravation." Witt v. James J. Keil, Jr., W.C. No. 4-225-334 (April 7, 1998); Miranda v. Best Western Rio Grande Inn, W.C. No. 4-663-169 (April 11, 2007). Because in the present case the ALJ's conclusion that the claimant's symptoms were caused by his underlying condition was a reasonable inference from the record, we perceive no basis on which to disturb his order.
II.
The claimant next contends that the ALJ's factual findings are not supported by substantial evidence. The claimant notes that the ALJ found that, "Moreover, Claimant has not demonstrated that the hazards associated with his employment were more prevalent than in everyday life or in other occupations." Order at 4, ¶ 13. The claimant then argues that the only support for this is the reports and testimony of Dr. Reichhardt and Dr. Reichhardt obtained no history from the claimant as to the nature of the claimant's outside activities. Therefore, the claimant argues that Dr. Reichhardt's opinions are based on assumptions and speculation and so the ALJ's finding must be set aside for lack of substantial evidence. We again disagree.
We first note that in our view this argument is similar to the previous one made by the claimant. Again, the claimant has the burden of proof to establish that the conditions of the employment were a direct and proximate cause of the alleged occupational disease. Wal-Mart Stores, Inc., supra. Then, as correctly recognized by the ALJ, if the claimant succeeds in establishing the requisite causal relationship to the employment, the burden shifts to the respondents to establish non-occupational contributors to the disease. Cowin Co. v. Medina, supra.
However, as we read the ALJ's order here he determined that the claimant failed to meet his initial burden to prove causation and as part of that determination the ALJ noted that the claimant had not demonstrated that the hazards associated with his employment were more prevalent than in everyday life or in other occupations. Therefore, the burden never shifted to the respondent to establish non-occupational contributors to the disease nor was it necessary for the ALJ to make findings based on substantial evidence that non-work exposure caused the claimant's degenerative disc disease.
Here, as previously noted, the ALJ found that the claimant's job activities did not cause, intensify, or, to a reasonable degree, aggravate his low back condition. Instead, the claimant's back problems were caused by the natural progression of his preexisting degenerative disc disease. The ALJ found that the claimant's low back pain was unrelated to his employment and although the claimant demonstrated an intolerance to work activities, there was no causal connection between the claimant's back condition and his work activities. Order at 3, ¶ 9.
These findings are supported by substantial evidence. Dr. Reichhardt opined that the claimant's job did not put him at an increased risk, beyond the activities of daily living, for developing degenerative disc disease. Tr (9/17/07) at 51. He further testified that he did not believe that the claimant had suffered an aggravation of a pre-existing injury. Tr. (9/17/07) at 51. Dr. Reichhardt testified that in his medical opinion the claimant's degenerative disc disease did not result directly from his employment. Tr. (9/17/07) at 49. Dr. Reichhardt opined that the claimant's degenerative disc disease could not be fairly traceable to his employment. Tr. (9/17/07) at 50.
In addition to the opinions of Dr. Reichhardt, the ALJ also noted that the claimant did not initially attribute his back condition to his employment when he received medical treatment from Drs. Ruff and Beard. Exhibit E at 8; Exhibit G at 11. Moreover, when the claimant subsequently sought FMLA leave from the employer he did not attribute his back condition to his employment, but rather requested leave for a "non job related serious condition" that included diabetes and degenerative disc disease. Exhibit Q at 41.
The question of whether the claimant has met the initial burden to prove causation is one of fact for the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). In our opinion, although there was conflicting evidence produced at the hearing, the ALJ's findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review.
III.
The claimant also contends the ALJ erred in permitting the introduction into evidence of a video tape of the claimant's job duties. The respondents offered into evidence Exhibit U, which is a video tape that depicted the operation of a slitter machine, which was similar to the machine that the claimant operated. The respondents provided testimony from the plant manager that the video tape showed the operation of a machine similar to the machine operated by the claimant. Tr. 14. The ALJ admitted the video tape over the objection of the claimant. Tr. 29. The claimant argues that for a number of reasons the video tape should not have been admitted into evidence. These reasons include that the video tape was of a different more modern machine, that the video tape was made after the onset of litigation, and that the videotape conflicted with a written job description. The ALJ determined that the differences between what was depicted on the video and the actual operation of the machine by the claimant only went to the weight that should be given the video tape, not to its admissibility. Tr. 29.We agree with the ALJ that the testimony of the plant manager provided a proper foundation for admission of the exhibit. See CRE 901(a) and (b)(1). Further, we note that the exhibit constituted evidence under CRE 1001(2), which could be admitted once a proper foundation had been laid. See Copeland v. City of Aurora W.C. 3-907-084, 3-896-046, 3-949-827, 3-954-423 (April 15, 1991) (absence of the investigator might affect the weight but did not affect the admissibility of surveillance video).
Here the ALJ found, with record support, that the plant manager detailed the job duties of a slitter operator and provided an explanation for the video tape that depicted the activities of a slitter operator. Order at 3-4, ¶ 11. The ALJ further found that although the video tape showed a different plant and a newer slitter machine, the plant manager credibly testified that the job activities reflected in the video tape were similar in all material respects to the claimant's job duties. Order at 4, ¶ 11.
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). McCarthy v. Poudre Valley Air Inc., W. C. No. 4-525-929 (June 17, 2005). We therefore review the ALJ's ruling in this instance under the abuse of discretion standard. See Renaissance 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. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001); Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo.App. 1993). In our opinion, no abuse of discretion occurred here.
IV. The claimant contends that the testimony of Dr. Reichhardt was inadmissible under CRE 702 and People v. Ramirez, 155 P.3d 371 (Colo. 2007), because it was not sufficiently reliable and was merely speculative. We disagree.Under the Colorado Rules of Evidence, before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. CRE 103(a)(1); See also § 8-43-210, C.R.S. 2007 (rules of evidence apply in workers' compensation proceedings); Gallegos v. B M Roofing, W.C. 3-962-465 (January 25, 1991).
Here, the claimant did not raise any objections to Dr. Reichhardt's qualifications at the time he was offered as an expert in medicine and rehabilitation. Tr. (9/17/07) at 36. Dr. Reichhardt was asked to render opinions on direct examination by respondents' counsel and again no objection was made to Dr. Reichhardt rendering expert opinions on the ground that his testimony was speculative or unreliable under CRE 702. Tr. (9/17/07) at 36-56.
We also note that at the inception of the hearing the respondents offered into evidence a report from Dr. Reichhardt marked Exhibit O. Dr. Reichhardt's report essentially contains the same type of opinions on injurious exposure that the claimant now contends are inadmissible. Dr. Reichhardt opined that it was medically probable that the claimant's low back pain was unrelated to his employment and further that his employment did not represent a significant aggravating factor in the development of his symptoms. Exhibit O at 37. No objection was made to Dr. Reichhardt's report and the report was accepted into evidence. Tr. (4/10/2007) at 20. The claimant's position statement contains no objection to his testimony on the grounds of its supposed unreliability, but only suggests that Dr. Reichhardt's opinions be given less weight than other evidence. We therefore conclude that the claimant waived any argument concerning the admissibility of the disputed expert evidence. Public Service Co. of Colorado v. Willow Water District, 856 P.2d 829 (Colo.App. 1993) (objection that evidence does not meet the standards for the admissibility of novel scientific evidence, under the "general acceptance" test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) may not be raised for the first time on appeal).
In any event, we perceive no abuse of the broad discretion vested in the ALJ in his consideration of Dr. Reichhardt's opinions. In People v. Ramirez supra, the court stated that scientific evidence is admissible under CRE 702 if it is reliable and relevant. The court also reiterated that the reliability inquiry should be broad in its scope and should consider the totality of the circumstances. Ramirez, 155 P.3d at 378. A showing of relevance merely requires consideration whether the expert testimony would be useful to the fact finder. Ramirez, 155 P.3d at 379.
Hence, both the applicable case law and CRE 702 contemplate a flexible test which allows an ALJ broad discretion to determine the admissibility of evidence based on an expert's knowledge, skill, experience, training and education. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995); Denver Symphony Ass'n v. Industrial Comm'n, 34 Colo. App. 343, 526 P.2d 685 (1974). 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 previously noted, the standard of 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, supra. 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 reliance upon the opinions of Dr. Reichhardt. Although the claimant has noted at some length the alleged inadequacies and weaknesses of Dr. Reichhardt's opinions, nothing in the record renders the expert testimony inadmissible as a matter of law. To the extent that Dr. Reichhardt's testimony was contradictory, as the claimant argues, the ALJ was free to credit those portions he found persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Moreover, we note that the principles articulated Ramirez pertain especially to scientific evidence that is "novel." Here, in our view, Dr. Reichhardt's views concerning whether it was medically probable that the claimant's low back pain was related to his employment do not rely on novel medical theories or opinions. Those opinions were within the usual expertise of the doctors who treated, evaluated, or examined the claimant, and we perceive nothing that renders those opinions unreliable as a matter of law. The arguments of the claimant go to the weight and probative value of the evidence; however, those evaluations were for the ALJ to make. We conclude that the ALJ did not abuse his discretion in admitting the expert evidence in this matter.
V. The claimant also contends the ALJ held the claimant to an incorrect standard in proving his exposure to hazards because Dr. Reichhardt's understanding of what constituted an "aggravation" was not consistent with the correct legal standard. Dr. Reichhardt stated that he understood that unless an aggravation is permanent it would not qualify as an occupational disease. Tr. (9/17/2007). In support of this argument, the claimant relies on Cooper v. Delta County Memorial Hospital, W.C. No. 4-275-780, March 12, 1997, which stated that the claimant is not required to prove that the industrial exposure was "permanent."We do not dispute the claimant's legal argument that temporary aggravations of preexisting conditions are compensable. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Moreover, the "substantial permanent aggravation" language of § 8-41-304(1), C.R.S. 2007, applies only when there is a dispute concerning which of multiple employers or insurers is liable for an occupational disease. See Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995).
Nevertheless, a claimant must prove that the alleged disability or need for treatment is causally connected to an injury sustained in his employment to receive workers' compensation benefits. Section 8-41-301(1)(c), C.R.S. 2007. The question of whether the claimant has proven causation is one of fact for resolution by the ALJ. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Here we do not read the ALJ's order as relying upon or stating an incorrect standard regarding aggravations of preexisting conditions. Rather, it is only certain parts of Dr. Reichhardt's testimony that suggest that the doctor might have used the term aggravation as necessarily indicating a permanent change in the claimant's condition. The ALJ may credit part or none of the expert's testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). The ALJ found with record support that claimant's back problems were caused by the natural progression of his preexisting degenerative disc disease. The ALJ's order reflects an understanding and application of the correct legal standard in this regard. Therefore, we are unpersuaded that the ALJ committed any error.
IT IS THEREFORE ORDERED that the ALJ's order issued October 10, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
RICHARD DIAZ, 818 DENVER AVENUE, FT LUPTON, CO, (Claimant).
INTERTAPE POLYMER GROUP, BRIGHTON, CO, (Employer).
CAMBRIDGE INTEGRATED SERVICES GROUP, INC., Attn: JUDY ROLLINS, C/O:, CAMBRIDGE ISG, PHOENIX, AZ, (Insurer).
MORRELL LAW OFFICE, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
MCCREA BUCK, LLC, Attn: REGAN H ROZIER, ESQ./JAMES BUCK, ESQ., SUITE 825, DENVER, CO, (For Respondents).