Opinion
W.C. No. 4-294-162
May 21, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied her claim for workers' compensation benefits. The claimant contends the ALJ erred in allowing the respondents to withdraw several general admissions of liability absent an allegation of fraud, mistake, or excusable neglect. The claimant further argues that the ALJ erroneously applied the preponderance of the evidence standard in determining the cause of the claimant's condition. Finally, the claimant argues the ALJ erroneously found that this case involves a claim for "mental impairment" under § 8-41-301(2)(a), C.R.S. 1998, and that there was no "physical injury." We affirm.
On or about March 27, 1996, the claimant was working in her office cubicle when she was exposed to fumes emitted by carpet glue. The claimant testified that workers were laying carpet in an adjacent area and the fumes drifted into her office. The claimant soon began to experience congestion, coughing, a headache, and the sensation of being "high." (Tr. p. 22). Thereafter, the claimant reported many symptoms including difficulty speaking, and she underwent numerous treatments and examinations.
The respondents filed several general admissions of liability admitting for medical and temporary disability benefits. In May 1997, the claimant applied for a hearing on the issues of permanent partial and permanent total disability. In August 1997 the respondents filed a motion seeking to add the issue of withdrawal of the admissions of liability. The respondents alleged that two expert witnesses were of the opinion that the claimant's condition was not caused by exposure to the fumes. A prehearing ALJ issued an order adding the issue of withdrawal of the admissions.
Meanwhile, the claimant underwent two examinations by a Division IME physician, Dr. Krieger. Ultimately, Dr. Krieger diagnosed the claimant as suffering from "irritant vocal cord dysfunction" (IVCD). A plausible interpretation of Dr. Krieger's deposition is that he believes the claimant suffers from IVCD as a result of exposure to an irritant chemical on March 27, 1996, and that the claimant now has permanent psychological and physical impairments as a result of the ensuing treatment.
At the hearing, the respondents presented the testimony of Dr. Repsher, an expert in pulmonary medicine. Dr. Repsher opined that the claimant was not exposed to sufficient quantities of harmful chemicals to have caused any tissue damage or physical injury to the vocal cords, nose, mouth, eyes, face, or central nervous system. Rather, Dr. Repsher believes that the claimant's symptoms are the result of a psychosomatic upper airways disease known as "conversion hysteria." (Tr. pp. 236, 240, 247). Dr. Becker, a physician and toxicologist, rendered similar opinions concerning the cause of the claimant's condition. (Tr. pp. 264, 269, 271).
Crediting the testimony of Dr. Repsher and Dr. Becker, the ALJ found that a "preponderance of the evidence" establishes that the claimant was not physically injured by exposure to the fumes. Instead, the ALJ found the claimant experienced a "psychological reaction which resulted in numerous respiratory and other physical complaints." Thus, the ALJ concluded that this case involves a claim for "mental impairment" within the meaning of § 8-41-301(2)(a); and he further found that the claimant failed to prove the elements necessary to award benefits under the mental impairment statute. The ALJ also held that the respondents' admissions of liability were the result of a mistake; and therefore, they were entitled to withdraw them.
I.
On review, the claimant first contends that the ALJ erred in allowing the respondents to withdraw the general admissions of liability absent proof of fraud, mistake, or excusable neglect. The claimant argues that the case law does not permit withdrawal of an admission without such a showing, and that the ALJ permitted withdrawal of the admissions simply because the respondents produced conflicting evidence concerning the cause of the claimant's condition. We find no error.
Section 8-43-203(2)(d), C.R.S. 1998, provides that: "Hearings may be set to determine any matter, but, if any liability is admitted, payments shall continue according to admitted liability." In HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990), the court interpreted this provision to mean that "if an admission of liability is contested by either party, the determination of the matter thus placed in issue is subject to determination by the ALJ at the adversary hearing." The court emphasized that the purpose of the statute is to bind respondents to admissions of liability where there is no legitimate controversy, while permitting respondents to "obtain relief from improvident or erroneous admissions." Id. at 252. In Kim, the court held that the respondents were entitled to prospective relief where they erroneously admitted for an average weekly wage in excess of that to which the claimant was actually entitled. See also, Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
The claimant's argument notwithstanding, the pertinent provision of § 8-43-203(2)(d), and HLJ Management Group, Inc. v. Kim, supra, do not require a showing of "fraud, mistake, or excusable neglect," in order to withdraw a general admission of liability. All that is required is that the respondents demonstrate the admission was "improvident," even if it was the result of simple negligence. In contrast, another sentence of § 8-43-203(2)(d) provides that once a case is closed pursuant to a final admission, "the issues closed may only be reopened pursuant to section 8-43-303." Section 8-43-303(1), C.R.S. 1998, concerns "reopening" of closed cases, and requires that a party seeking reopening prove "fraud, an overpayment, an error, a mistake, or a change in condition."
Here, the respondents did not file a final admission of liability; and therefore, the general admissions of liability did not "dispositively settle" their liability subject only to reopening under § 8-43-303(1). See Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App. 1990). Rather, the respondents retained the right to demonstrate that the general admissions of liability were improvident because they were inconsistent with the facts concerning the cause of the claimant's disability. HLJ Management Group, Inc. v. Kim, supra.
However, even if we were to assume that the respondents were required to prove that the admissions were the product of "mistake," the ALJ found that they did so. (Conclusion of Law 23). This finding constitutes a plausible inference from the fact that the respondents filed general admissions of liability, and subsequently obtained expert medical opinion that the claimant's disability was not caused by the exposure to fumes. Based on this evidence, the ALJ could reasonably infer that the respondents were mistaken concerning the facts surrounding the claimant's condition, and would not have filed the admissions had they known the true state of affairs. Cf. Standard Metals Corp. v. Gallegos, 781 P.2d 142 (Colo.App. 1989) (permitting claimant to reopen denied claim where newly discovered medical evidence revealed that his kidney disease was related to long-term exposure to nephrotoxic particles). Thus, the ALJ did not err in permitting prospective withdrawal of the general admissions of liability.
II.
The claimant next contends (in arguments 2 and 4 of her brief) that the ALJ applied an incorrect burden of proof when determining the issue of causation. Relying on Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998), the claimant argues that because Dr. Krieger performed a Division-sponsored IME, his opinion concerning the "cause" of the claimant's condition could not be overcome except by clear and convincing evidence. The claimant points out that the ALJ applied a preponderance of the evidence standard in finding that the claimant's symptoms were caused by a "psychological reaction" rather than by exposure to fumes. We disagree with this argument.
Section 8-41-301(1)(c), C.R.S. 1998, requires that the claimant's injury or death be "proximately caused by an injury or occupational disease arising out of and in the course of the employee's employment." Proof of causation is a "threshold requirement" which must be established before any compensation is awarded, and the question of causation is generally one of fact for determination by the ALJ. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999); Snyder v. Industrial Claim Appeals Office, supra.
Section 8-42-107(8)(c), C.R.S. 1998, provides that a Division IME physician must rate the claimant's medical impairment, and that the IME physician's "finding" concerning impairment "shall be overcome only by clear and convincing evidence." In Qual-Med, Inc. v. Industrial Claim Appeals Office, supra, the court held that an IME physician's opinion concerning the cause of a particular component of the claimant's overall impairment must be overcome by clear and convincing evidence. However, Qual-Med did not address the issue of whether the claimant sustained a compensable injury in the first instance. In fact, the court explicitly stated that the claimant has the initial burden of proving entitlement to benefits by a preponderance of the evidence by demonstrating that the injury arose out of and in the course of employment. 961 P.2d at 592.
Here, the "causation" dispute concerns the threshold question of whether the claimant sustained any injury arising out of and in the course of employment. This is not a case in which the respondents sought to overturn the Division IME physician's rating of impairment, as was the situation in Qual-Med. Consequently, the ALJ was not bound by the elevated burden of proof contained in § 8-42-107(8)(c), and did not err when he found that a preponderance of the evidence establishes that the claimant did not sustain a compensable injury.
III.
The claimant next contends the ALJ made insufficient findings of fact to support his conclusion that the claim is one for "mental impairment" within the meaning of § 8-41-301(2)(a). Specifically, the claimant asserts that the ALJ failed to determine whether the swollen eyes, cough, dizziness, and headache which the claimant reported at the time of the exposure constituted a "physical injury" sufficient to remove the claim from the dictates of the mental impairment statute. We find no error.
Section 8-41-301(2)(a) defines a claim for "mental impairment" as one involving "a disability arising from an accidental injury arising out of and in the course of employment when the accidental injury involved no physical injury." In Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996), the court held that a "physical injury" exists if there "is a physical component that contributes to the injury." The concept of a "physical injury" does not carry the requirement of any degree of seriousness, and a mere unwanted touching may qualify as a physical injury. Conversely, an injury is subject to the mental impairment statute if it is a mental-mental one and is the "product of purely an emotional stimulus that results in mental impairment." Id. at 920, 921.
We have previously ruled that a claim is not removed from § 8-41-301(2) where the "stimulus" to the injury is mental, but the mental impairment produces certain physical side effects. Thus, in DuShane v. Beneficial Colorado, Inc., W.C. No. 4-218-217, July 17, 1998, aff'd., Dushane v. Beneficial Colorado, Inc., (Colo.App. No 96CA1404, December 27, 1996) (not selected for publication), we held that the claim for benefits fell within the statute where the psychological stressors, which included "intimidating and degrading" conduct by the claimant's supervisor, produced such physical consequences as nausea and diarrhea. The following quotation from our decision in DuShane is pertinent:
It must be noted that the Oberle decision does not, on its face, purport to decide whether cases involving an "emotional stimulus" which causes a "physical injury" fall within the ambit of § 8-41-301(2)(a). However, we interpret Oberle as implying that such cases are subject to the statute. This is true because cases in which a purely emotional stimulus is alleged to have caused identifiable physical symptoms are far less subject to direct proof than cases in which the physical component occurs simultaneously to or in conjunction with the "psychologically traumatic event" underlying the claim. Moreover, the Oberle court's focus on the "stimulus to the mental impairment appears to require a determination of whether the physical injury is a cause of the mental impairment, not whether the physical injury is a result of the impairment.
The question of whether, for purposes of the statute, a physical injury occurred is one of fact for determination by the ALJ. Oberle v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ's determination of this issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. In applying this standard of review, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ is not held to a standard of absolute clarity in expressing his findings of fact so long as the basis of the decision is apparent from the entire order. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Evidence not explicitly mentioned in the order is considered to have been implicitly discredited. Cooper v. Industrial Claim Appeals Office, supra.
The claimant's argument notwithstanding, the ALJ expressly considered her testimony that various physical symptoms, including swollen eyes, coughing, and dizziness, first appeared shortly after her exposure to the fumes. (Findings of Fact 4 through 7). However, the ALJ was persuaded by the testimony of Dr. Repsher and Dr. Becker that, to the extent the symptoms were present, they were a product of the claimant's mental reaction to smelling the fumes, not the result of any toxic or injurious consequence of coming into contact with the fumes. (Conclusion of Law 22). Thus, the evidence supports the ALJ's finding that the claimant's physical symptoms were the product of a purely emotional stimulus not involving any physical injury. Oberle v. Industrial Claim Appeals Office, supra. Further, we have no difficulty ascertaining the basis of the ALJ's order from the findings entered.
It is true that some evidence in the record would support contrary findings and conclusions concerning the nature and cause of the claimant's symptoms. However, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or the inferences to be drawn from the record. Metro Moving Storage Co. v. Gussert, supra. IT IS THEREFORE ORDERED that the ALJ's order dated July 2, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed May 21, 1999 to the following parties:
Sherry Faulkner, 1455 Periwinkle Dr., Boulder, CO 80304
Alexander Dawson School, Attn: David Brown, 4801 N. 107th St., Lafayette, CO 80026-9715
Cynthia Spitz, Truck Insurance Exchange, P.O. Box 378230, Denver, CO 80237
Rebecca A. Koppes Conway, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
J. Barton Maxwell, Esq., 1225 17th St., 28th floor, Denver, CO 80202 (For Respondents)
By: A. Pendroy