Opinion
W.C. No. 4-018-727
October 10, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied her petition to reopen. We affirm.
The following facts are undisputed. The claimant suffered an occupational disease which resulted in a binaural hearing loss. The respondent filed an uncontested Final Admission of Liability, which admitted liability for permanent partial disability benefits based upon Dr. Hogle's opinion that the claimant sustained a 53% hearing loss, of which 90% is attributable to the hazardous industrial noise exposure. On April 20, 1993, the claimant filed a petition to reopen the claim and alleged a worsening of her condition. The ALJ denied the petition in an order dated September 2, 1993. The claimant filed a second petition to reopen on July 6, 1994.
Crediting the opinion of Dr. Hogle, the ALJ determined that the worsening of the claimant's hearing was due to "the aging process" and not the prior injurious noise exposure during her employment. Therefore, the ALJ determined that the claimant failed to sustain her burden to prove that the worsening of her hearing is causally connected to the occupational disease. In so doing, the ALJ rejected the claimant's argument that the effect of "the aging process" has been more profound as a result of the claimant's prior noise exposure. Consequently, the ALJ denied the petition to reopen.
On review, the claimant asserts that the ALJ abused his discretion in failing to reopen the claim. We disagree.
The ALJ is vested with wide discretion to reopen a claim upon a showing that claimant has suffered a worsening of condition that is causally related to the original industrial injury. Lucero v. Industrial Commission, 710 P.2d 1191 (Colo.App. 1985). Consequently, we are bound by the ALJ's determination in the absence of fraud or abuse of discretion. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986); Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983).
The standard of review for an alleged abuse of discretion is whether the ALJ's findings of fact "exceed the bounds of reason." Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). We cannot conclude that the ALJ's determination exceeds the bounds of reason if it is supported by substantial evidence and plausible inferences drawn from conflicts in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, the claimant contends that her worsened condition is compensable regardless of its connection with aging because the worsening flows from the original injury. Specifically, the claimant argues that the worsening progressed more rapidly because of the original damage caused by the industrial exposure. The claimant also argues that the degree of increased hearing loss, 10-20 decibels, would not have been noticeable or required the need for hearing aides but for the original damage.
We do not disagree that the circumstances described are sufficient to establish a compensable worsening of condition. However, as we read the ALJ's decision, he was persuaded by Dr. Hogle's opinion that neither the described circumstances, nor any other basis for compensability exist here. Admittedly, the record contains some evidence, which if credited might support a contrary inference. See e.g., Tr. pp. 25, 26. However, the ALJ's pertinent factual determinations represent a plausible interpretation of the evidence he found persuasive. Therefore, the ALJ's findings must be upheld. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Contrary to the claimant's further contention, it makes no difference whether the claimant or the respondent bore the burden of proof. The ALJ was persuaded by Dr. Hogle's opinion that the increased hearing loss is not attributable to the industrial exposure. Therefore, even if it was the respondent's burden to prove that the hearing loss was not related to the industrial exposure, that burden was met.
The claimant's remaining arguments have been considered but do not convince us that there is any error in the ALJ's conclusion. The ALJ was persuaded that, even absent the industrial exposure, the claimant would have sustained a 10-20 decibel loss in hearing as a result of the natural aging process. Moreover, the claimant has already been compensated for the portion of the total loss which was caused by industrial exposure. Although the claimant argues that her total impairment is amplified when the increased loss is superimposed on the loss which was caused by the industrial exposure, this argument overlooks the requirement that the worsening must be caused by or a natural result of the industrial exposure. See Post Printing Publishing Co. v. Erickson, 94 Colo. 328 [ 94 Colo. 382], 30 P.2d 327 (1934); cf. Standard Metals Corp v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); see also Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993) (a claimant sustains an occupational disease only to the extent that the industrial exposure to the hazards of the disease, cause, aggravate or accelerate the claimant's disability). Here, the ALJ was persuaded that the worsening was caused by an unrelated factor, and there is no error in that determination.
IT IS THEREFORE ORDERED that the ALJ's order dated December 20, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona HalseyNOTICE
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 October 10, 1995 to the following parties:
Anne Edens, 12892 W. Jewell Circle, Lakewood, CO 80228
Gates Corporation, Attn: Nick Butler, 999 S. Broadway, P.O. Box 5887, Denver, CO 80217
Alexsis, Inc., Attn: Tracy Venter, 1099 18th St., Ste. 2050, Denver, CO 80202-1930
Barbara J. Furutani, Esq., 1732 Race St., Denver, CO 80206 (For the Claimant)
Lynn P. Lyon, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondent)
BY: _______________________