W.C. No. 4-405-023Industrial Claim Appeals Office.
August 7, 2002.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant sustained an occupational disease causing binaural hearing loss, and awarded medical benefits. We affirm.
The claimant worked for the employer as a journeyman molder for 29 years. The claimant’s last day of work was December 17, 1996. On December 16, 1998, the claimant filed a claim for workers’ compensation benefits which alleged binaural hearing loss.
On conflicting medical evidence, the ALJ found the claimant has a moderate high frequency loss bilaterally at 3,000 hertz and above, and that the configuration of the loss indicates it is probably due to noise exposure. The ALJ also found that the molding area of the foundry where the claimant worked had an average decibel level of 85 to 92, and that hearing loss occurs at levels exceeding 90 decibels. Further, the ALJ determined the claimant wore no hearing protection until the last 5 to 6 years of the employment.
Based upon these findings, the ALJ determined the claimant’s hearing loss was caused by an injurious noise exposure during the first 24 to 25 years of the employment. Moreover, the ALJ determined the claimant did not realize the seriousness of his hearing loss until 1997 or 1998. Consequently, the ALJ determined the December 16, 1998 claim for workers’ compensation benefits was not barred by the statute of limitations in § 8-43-103(2), C.R.S. 2001.
I.
On review, the respondents contend the record fails to support the ALJ’s finding of a compensable occupational disease. We disagree.
Section 8-40-201(14), C.R.S. 2001, defines an “occupational disease” as:
“a disease which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work, as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of employment.”
To prove an occupational disease, the claimant must prove a causal connection between his disability and the hazards of the employment Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251
(Colo.App. 1999). Once established, the burden of proof shifts to the respondents to demonstrate that the claimant was equally exposed to the hazards of the disease outside of the employment. Cowin Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
Whether the claimant has sustained his burden of proof is a question of fact for resolution by the ALJ. Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). Consequently, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Monfort Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951) Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Furthermore, the claimant is not required to present medical evidence if the facts and circumstances indicate within a reasonable probability that the disease resulted from or was precipitated by the employment activities, so that the ALJ may infer a causal relationship between the disease and the need for treatment, even if the actual cause is “shrouded in mystery.” See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3
(1968); see also Savio House v. Dennis, 665 P.2d 141 (Colo. 1983). However, to the extent medical testimony is presented, it is the ALJ’s province to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the ALJ expressly credited the opinions of Dr. McHugh and Dr. Simon over the contrary opinions of Dr. Ford. On October 5, 1999, Dr. McHugh who is an audiologist, opined that the claimant’s 20 year history of working in a loud environment without appropriate hearing protection, and the audiometric configuration of the claimant’s hearing loss suggested noise exposure was the cause of the claimant’s hearing loss. Furthermore, Dr. McHugh’s January 21, 1999 report indicated the claimant’s history was negative for any family, or recreational noise exposure that would account for the hearing loss.
Dr. Simon was initially equivocal on the cause of the claimant’s hearing loss. However, on January 29, 1999, Dr. Simon deferred to Dr. McHugh’s tests results and agreed with Dr. McHugh that the hearing loss was probably work related. Therefore, the record contains substantial medical evidence to support the ALJ’s finding that the claimant established a causal connection between the hearing loss and the employment. Consequently, it is immaterial that the opinions of Dr. Ford, if credited, might support a contrary result. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
The respondents point out Dr. McHugh’s opinion that use of hearing protection devices (HPD) would have reduced the work noise at the foundry to a harmless level. (October 5, 1999, McHugh). However, the record contains highly conflicting evidence concerning the introduction of HPD’s to the foundry. Keith Warren Johnson, the employer’s Human Resource Manager, made a “guess” that HPD’s were provided in the early “80’s”. (Tr. p. 82). Norm Turpin, the employer’s Environmental Healthy and Safety Coordinator “speculated” the employer required the use of HPD’s in the “mid-80’s.” (Tr. p. 95). However, Turpin admitted he could not be sure because he did not work for the employer between 1985 and 1989. (Tr. p. 95). The claimant stated the employer only provided HPD’s during the last 5 or 6 years of his employment. (Tr. pp. 56-57). Within his sole prerogative, the ALJ resolved the conflict in favor of the claimant and reasonably inferred the claimant had at least 24 years of injurious noise exposure during the employment.
The respondents also rely on evidence the claimant received safety awards which he would not have earned if he had failed to wear the HPD’s provided by the employer. Although, the claimant stated he received safety awards, he did not state when the awards were received. (Tr. p. 47). Accordingly, the claimant’s testimony is not inherently inconsistent with the ALJ’s finding that the claimant suffered an injurious noise exposure during the first 24 years of his employment.
II.
The respondents contend the statute of limitations began in 1994 or 1995, when the claimant noticed a hearing loss. Therefore, they argue the claim is barred. Again, we disagree.
Section 8-43-103(2), provides that the right to workers’ compensation benefits is barred unless a formal claim is filed within two years after the injury. However, the statute of limitations does not begin to run until the claimant, as a reasonable person, knows or should have known the “nature, seriousness and probable compensable character of his injury.” City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). The requirement that the claimant recognize the “seriousness” of the injury contemplates the claimant will recognize the gravity of the medical condition. This obviates the necessity for employees to “rush in with claims for every minor ache, pain, or symptom.” 7 Larson’s Workers’ Compensation Law, 2002 § 126.05(5). Consequently, our courts have held that where a claimant was aware of an industrial back injury, but unaware the injury might later cause a disc herniation, the claimant did not recognize the seriousness of the injury until the herniation was discovered. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Intermountain Rubber Industries v. Valdez, 688 P.2d 1133
(Colo.App. 1984).
Furthermore, the statute of limitations is an affirmative defense to the respondents’ liability for workers’ compensation benefits. See Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394
(1977). Consequently, the claimant was not required to prove that he was unaware of the seriousness of the hearing loss before 1997. Rather, the respondents were required to prove that the claimant was aware of the seriousness of the injury more than two years before the date of the claim. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163
(Colo.App. 1983) (burden of proof determined by assessing which party would be successful if no evidence were presented; then placing burden of proof on the adverse party). Whether the respondents sustained their burden of proof was a question of fact for resolution by the ALJ Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970).
The Specific Findings of Fact reflect the ALJ’s awareness and application of the proper legal standard. (See Conclusions of Law 4). Therefore, we reject the respondents’ contention that the ALJ erred insofar as he required the respondents to prove the claim was barred by the statute limitations.
The claimant testified he noticed a gradual change in his hearing in 1994. (Tr. pp. 52). However, he stated he did not know whether he was imagining the change because it was always so noisy in the foundry. (Tr. pp. 38, 40, 52). Further, he stated he did not know how to read the results of the annual hearing tests conducted by the employer, was never sent to a doctor by the employer after the testing, and was never advised he needed treatment. Consequently, the claimant stated he did not believe he had a hearing problem until 1997 or 1998, when his condition worsened. (Tr. pp. 40, 49, 51). The respondents’ arguments notwithstanding, the ALJ’s finding that the claimant was not reasonably aware of the seriousness of his hearing loss until 1997 or 1998 is a plausible inference from the claimant’s testimony. Consequently, it is binding on review. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
Moreover, the ALJ’s factual determinations support his conclusion that the December 16, 1998 claim for workers’ compensation was timely. Therefore, we may not disturb the ALJ’s award of medical benefits. See Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, supra. (medical benefits recoverable before onset of disability of occupational disease).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 7, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 7, 2002 to the following parties:
James Garcia, 4204 Shelley Ave., Colorado Springs, CO 80910
Svedala Pumps Process, P. O. Box 340, Colorado Springs, CO 80901
Kevin Krayna, Zurich U.S. P. O. Box 20048, Kansas City, MO 64195
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Pattie J. Ragland, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Hurtado