Opinion
W.C. No. 4-268-197
April 16, 1998
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which determined that the claimant suffered a compensable injury and awarded medical benefits. We set aside the order and remand for entry of a new order.
In April 1995 the claimant was diagnosed with Hepatitis C and began treating with Dr. Brooke. The claimant alleged that she became infected with Hepatitis C in November 1994, when her skin was punctured by a hypodermic needle concealed in soiled hospital laundry she was sorting in the course of her employment for Quality Linen and Supply (employer).
On February 7, 1995, the claimant sustained a work-related orthopedic injury and was referred to Dr. Cull, who later referred her to Dr. Fitzgerald, an orthopedic surgeon. In a report dated October 10, 1995, Dr. Cull opined that the orthopedic injury had "no bearing on the etiology" of the claimant's Hepatitis C. Similarly, on March 19, 1996, Dr. Fitzgerald opined that the claimant's Hepatitis C was not "work related."
The ALJ found that in a report dated September 26, 1996, Dr. Brooke "made clear that the Hepatitis C probably developed" from the claimant's employment. The ALJ also found that, "The medical doctors who have taken a complete history from the Claimant have unanimously opined that the Hepatitis C developed as a result of Claimant's employment at the laundry." Based upon these findings and the respondents' testimony "to the inherent danger of employment at the laundry," the ALJ found that claimant sustained her burden to prove that the Hepatitis C infection arose out of and in the course and scope of her employment. Consequently, the ALJ ordered the respondents to provide treatment for the Hepatitis C.
I.
On appeal the respondents contend that the ALJ erroneously relied on Dr. Brooke's "speculative" opinions concerning the cause of the Hepatitis C. As argued by the respondents, the September 26, 1996 report of Dr. Brooke states:
"There is no way for me to speculate how [the claimant] acquired hepatitis C. It is most probable, of course, that she acquired it through an inadvertent needle stick, which she does report in November, 1994. There is no way to prove this, or even to prove whether she might not have the disease prior to that. . . . In view of the social and medical history I have obtained from Tammy, it is my opinion that she did become inoculated by the inadvertent needle stick in November 1994 with hepatitis C."
Admittedly, the September report is subject to conflicting interpretation. However, it was the ALJ's sole prerogative to resolve the inconsistencies in Dr. Brooke's report. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). In so doing, the ALJ was free to credit all, part of none of Dr. Brooke's opinions. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The ALJ's findings reflect that she resolved the conflict by crediting Dr. Brooke's opinion that the "most probable" cause of the claimant's Hepatitis C was being stuck with a contaminated hypodermic needle in November 1994. (Finding of Fact 8). We may not interfere with that determination. Therefore, the fact that the report contains some statements which lend support to a different interpretation affords no basis for appellate relief. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ's credibility determinations are binding unless the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony).
II.
Next, the respondents' contend that there is no evidence to support the ALJ's finding that respondents testified "to the inherent danger of employment at the laundry." We disagree.
The employer's General Manager, Cheryl Pitchford, testified that the employer has a "pretty extensive" program to control contamination and the spread of infectious diseases from exposure to needles in hospital laundry. (Tr. pp. 23, 25, 30). Ms. Pitchford stated that all employees are trained to follow the procedure. (Tr. p. 28). Further, Ms. Pitchford indicated that the employer provides a Hepatitis B vaccination for all employees who handle contaminated laundry, and that if an employee is struck by a needle, it is placed in a "Biohazard Container" for testing. (Tr. p. 31). The respondents' arguments notwithstanding, a reasonable inference from Ms. Pitchford's testimony is that the employer adopted these procedures because it was aware that laundry work carries an "inherent danger" of blood borne infections. See Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (ALJ's findings may be inferences from circumstantial evidence).
III.
We also reject the respondents' contention that the ALJ "excluded" consideration of the medical opinions of Dr. Cull, and Dr. Fitzgerald. To the contrary, the ALJ expressly considered and rejected their opinions. (Findings of Fact 9, 10). Further, we perceive no basis for disturbing the ALJ's determination. Dr. Cull and Dr. Fitzgerald only treated the February 1995 orthopedic injury, and their medical reports can reasonably be interpreted as reflecting their opinions that the Hepatitis C infection is not related to the orthopedic injury.
As noted by the ALJ, the claimant did not allege any causal connection between the Hepatitis C and the orthopedic injury. (Finding of Fact 9). Consequently, the ALJ did not abuse his discretion in finding that the opinions of Dr. Cull and Dr. Fitzgerald are not "relevant" to the pertinent issue of whether the claimant became infected as a result of a work-related needle stick in November 1994.
IV.
Lastly, the respondents contend that the ALJ erroneously found, the "medical doctors who have taken a complete history from the Claimant have unanimously opined" that the claimant was infected with Hepatitis C during her employment. In support, the respondents point out that only Dr. Brooke, Dr. Cull and Dr. Fitzgerald rendered opinions on the cause of the claimant's Hepatitis C, and both Dr. Cull and Dr. Fitzgerald disagreed with Dr. Brooke. Therefore, the respondents contend that there is not substantial evidence to support the ALJ's implicit determination that more than one doctor agreed with Dr. Brooke's opinion on the cause of the claimant's infection.
The claimant concedes that Dr. Brooke is the only medical doctor who took a complete history of the claimant and opined that she was infected during a work-related needle stick in November 1994. Accordingly, the ALJ erred insofar as she determined that Dr. Brooke's opinions were corroborated by the opinions of other physicians who took a complete history of the claimant.
We cannot ascertain how the ALJ would have assessed the sufficiency and probative weight of Dr. Brooke's opinions had she recognized that Dr. Brooke's opinions were not shared by another other examining physician. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) (finding of no evidence may not be converted to a finding of no credible evidence). Accordingly, in the absence of the erroneous finding, the ALJ's findings are insufficient to determine whether she properly found a compensable injury. Consequently, we must set aside the order and remand the matter to the ALJ for additional findings of fact and the entry of a new order.
IT IS THEREFORE ORDERED that the ALJ's order dated April 2, 1997, is set aside and the matter is remanded to the ALJ for additional findings of fact and the entry of a new order which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
Copies of this decision were mailed April 16, 1998 to the following parties:
Tammy M. Manzanares, 2029 South Corona, Colorado Springs, CO 80906
Quality Uniform Linen Supply, 802 S. Wahsatch Ave., Colorado Springs, CO 80903-4115
Mike Baker, Liberty Mutual Ins. Co., P.O. Box 3539, Englewood, CO 80155-3539
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
David G. Kroll, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
BY: _______________________