Opinion
W.C. No. 4-596-946.
March 24, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ). The claimant contends the ALJ erroneously determined the claimant's severe allergic reaction was not a compensable occupational disease. We disagree, and therefore affirm.
The claimant worked as an operating room nurse, and alleged that she required medical treatment for urticaria (hives) caused by contact with some form of latex in the operating room on June 26, 2003. Approximately 6 to 7 years earlier, the claimant was diagnosed with latex sensitivity, and as a result, switched to wearing Biogel surgical gloves that are latex free. Following the alleged injury, the claimant was transferred to work in the radiology department, where the claimant had less potential contact with latex. However, the claimant admitted that she continued to experience episodes of urticaria. (Tr. pp. 35, 44). On July 21, 2003, the claimant reported to her treating physician that she experienced a severe allergic reaction at home the previous weekend. The claimant also reported to Dr. Raschbacher that she had an outbreak of hives on August 5, 2003.
Dr. Volz, an allergist and immunologist, testified that testing revealed the claimant has a contact but not airborne latex allergy. Dr. Volz was unable to ascertain exactly what substance caused the claimant's allergic reaction on June 26. (Tr. p. 121). Instead, Dr. Volz opined that the cause of the claimant's hives is multifactorial, and he could not state within a reasonable degree of medical probability that the June 26 incident was caused by a work-related exposure to latex. (Tr. pp. 79, 80, 81, 86, 94-95, 114-115, 120, 123). Dr. Volz added that the claimant's exposure to latex was greater in the work environment than outside of work, but that the claimant's exposure to other allergens was greater outside the employment. (Tr. p. 98). Dr. Hughes performed an independent medical examination, after which he opined that the claimant's allergy manifestations were non-occupational. (Respondents' Hearing Exhibit G).
The ALJ found claimant has history of allergies to various foods, plants, dust, pets, and mold dating back to childhood. Further, the ALJ determined that the urticaria has manifested at work and at home before and after June 26, 2003. Crediting the opinions of Dr. Hughes and Dr. Volz, the ALJ determined the June 26 allergic reaction could have been caused by any one of a number of factors and that the claimant failed to prove it was caused by a work-related contact with latex. The hearing officer also found the claimant's latex allergies did not aggravate her other allergies, and the employment did not cause, intensify, or aggravate to some reasonable degree the claimant's allergic condition. Consequently, the ALJ determined the claimant failed to sustain her burden to prove a compensable injury, and denied the request for workers' compensation benefits and penalties.
On review, the claimant first contends the ALJ's findings are insufficient to permit appellate review of her argument that she suffered an industrial accident, not an occupational disease. The respondents contend this argument was not raised before the ALJ. We agree with the respondents. However, even if the argument were properly before us, we perceive no need to remand the matter for additional findings.
A compensable injury may result from an industrial exposure which aggravates, accelerates, or combines with a pre-existing non-occupational condition to cause a compensable disability or need for medical treatment. Section 8-41-301(1)(c), C.R.S. 2004; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Where the aggravation is the result of a prolonged exposure occasioned by the nature of the employment and not a traumatic event, the aggravation is an "occupational disease." See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997). Once the claimant establishes a causal connection between an employment exposure to the hazards of the disease, the burden shifts to the respondents to prove a non-work related cause of the disease. Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
In contrast, an injury that is traceable to a particular time, place, and cause is an "industrial accident." Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982) (the term "injury" encompasses both accidental injuries and occupational diseases). The fact that a condition becomes acutely symptomatic does not transform it from an occupational disease into an accidental injury. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993) ; Masdin-Gardner-Denver-Cooper Industries, Inc., supra.
Regardless of whether the claimant characterized the injury as an occupational disease or industrial accident, it was the claimant's burden to prove a causal connection between the employment and the condition for which medical treatment is sought. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The determination of whether the claimant sustained that burden of proof is factual in nature. Therefore, we must uphold the ALJ's determination if supported by substantial evidence in the record, and plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. 2004; Campbell v. IBM Corporation, supra. Application of the substantial evidence test requires that we defer to the ALJ's credibility determinations, and her assessment of the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, supra.
Here, the ALJ essentially determined there was a possibility that a work-related allergen caused the claimant's reaction on June 26, but the claimant failed to prove it was more likely than not that a work-related allergen caused the reaction. Consequently, whether the incident would be properly characterized as an occupational disease or industrial accident, it is not compensable. Moreover, because the ALJ found the claimant failed to present evidence sufficient to establish a causal connection between the employment and her condition, the burden of proof never shifted to the respondents to prove a non-industrial cause for the allergic reaction. Therefore, we reject the claimant's argument in this regard.
Contrary to the claimant's further contention, the ALJ's findings are supported by substantial evidence in the claimant's testimony, the medical records of Dr. Hughes, and the testimony of Dr. Volz. Consequently, the ALJ's findings must be upheld. See § 8-43-301(8).
The claimant contends that Dr. Hughes' opinions have no probative value because Dr. Hughes is not an allergy expert. This argument is not persuasive. The ALJ was free to consider Dr. Hughes' credentials in determining the weight to afford his opinions, but we may not reweigh the evidence on review or substitute our judgment for that of the ALJ on this issue. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
We note the claimant's further contention that the transcript is incomplete because it does not include Dr. Volz's full response to the question of: How quickly a patient sensitized with allergy antibodies will manifest an allergic reaction? (Tr. pp. 104-105). As argued by the claimant, there is a break in the recorded audio after Dr. Volz's statement that the allergic reaction can manifest "as quickly as maybe a few seconds." However, on cross-examination Dr. Volz stated that under such circumstances, the patient would experience a reaction within a few seconds or minutes or hours. ( See Tr. p. 120). Therefore, the transcript is sufficient to permit appellate review, and it is unnecessary to remand the matter correct the missing testimony, as the claimant requests. See Goodwill Industries of Colorado Springs v. Industrial Claim Appeals Office, 862 P.2d 1042 (Colo.App. 1993).
Finally, the claimant argues the ALJ erred in failing to impose penalties for the respondents' failure timely to admit or deny liability, as required by § 8-43-203(2)(a), C.R.S. 2004. However, such penalties are not available unless "the claimant is successful on the claim for compensation." McManus v. Industrial Claim Appeals Office, 81 P.3d 1074 (Colo.App. 2003); Racon Construction Co., v. Industrial Claim Appeals Office, 775 P.2d 61 (Colo.App. 1989). Because the ALJ denied the request for compensation, the ALJ did not err in denying the request for penalties under § 8-43-203(2)(a).
IT IS THEREFORE ORDERED that the ALJ's order dated August 17, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Catherine Wright, Westminster, CO, Rocky Mountain Health, c/o Rose Medical Center, Denver, CO, Zurich Insurance, c/o Monica Westlund, Broadspire, Denver, CO, William J. Macdonald, Esq., Denver, CO, (For Claimant).
Cindy Slevin, Esq. and Dawn Watts, Esq., Denver, CO, (For Respondents).