W.C. No. 4-539-081.Industrial Claim Appeals Office.
July 23, 2004.
FINAL ORDER
Respondent Argonaut Insurance (Argonaut) seeks review of orders of Administrative Law Judge Harr (ALJ) holding it liable for permanent partial disability benefits caused by an occupational disease. Argonaut contends the evidence does not support the ALJ’s finding that the claimant did not sustain a “substantial permanent aggravation” of the occupational disease while the employer was insured by respondent Pinnacol Assurance (Pinnacol). Argonaut also contends it was denied due process of law by the ALJ’s failure to authorize a post-hearing position statement. We affirm.
This matter was before us previously, and our Final Order dated January 22, 2004, contains a summary of the facts. Our prior statement of the facts is incorporated in this order as if fully set forth. On April 13, 2004, the ALJ entered a “Summary Order” requiring Argonaut to pay permanent partial disability benefits. This order had the effect of finalizing the ALJ’s prior order insofar as it found that Argonaut is the liable carrier with respect to the claimant’s occupational disease.
I.
On review, Argonaut first contends substantial evidence does not support the ALJ’s finding that the claimant did not sustain a substantial permanent aggravation of her back disease after October 1, 2001, when Pinnacol assumed the risk. Argonaut asserts that the ALJ credited the claimant’s testimony in some respects, but failed to give sufficient weight to her testimony that her symptoms increased after October 1, that her work caused the symptoms to increase, and that she took larger dosages of medication because of the increased pain. Argonaut also disputes the ALJ’s decision to credit the opinions of Dr. Hughes. We perceive no error.
Section 8-41-304 (1), C.R.S. 2003, provides that when compensation is payable for an occupational disease, the employer or insurance carrier on the risk when the claimant “was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof” shall alone be liable for the disease. The last injurious exposure and substantial permanent aggravation requirements represent separate tests for shifting liability to a subsequent employer or insurer. The “last injurious exposure” element requires exposure to a concentration of the hazard sufficient to cause the disease if continued over a sufficient period of time, and the “substantial permanent aggravation” element refers to the effect of an injurious exposure. The substantial permanent aggravation test ameliorates the impact of the last injurious exposure test. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The question of whether a last injurious exposure has resulted in a “substantial permanent aggravation” is one of fact for determination by the ALJ. Monfort, Inc. v. Industrial Claim Appeals Office, supra. Thus, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2003. This standard of review requires that we defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002). When determining the credibility of a witness, the ALJ is free to credit all, part, or none of the testimony. Monfort, Inc. v. Rangel, supra.
Here, the ALJ was not persuaded that the claimant sustained a substantial permanent aggravation of her condition after October 1, 2001, when Pinnacol assumed the risk. This conclusion is supported by evidence that the claimant experienced back problems for more than a year prior to October 2001, and these problems became particularly acute in June 2001, when the claimant was required to assume extra duties following a reduction in force. Most importantly, the ALJ credited the opinion of Dr. Hughes that the necessity for back surgery, which the claimant underwent in January 2002, already existed by the time Pinnacol came on the risk.
It is true the claimant testified that she experienced increased pain when performing her duties after October 1, and that she increased the dosage of her medication to reduce the pain. However, the claimant also testified that she considered her job less physically demanding after her duties were changed in October 2001. (Tr. P. 51). Thus, Finding of Fact 7, which the Argonaut challenges, properly recognizes that the claimant’s symptoms increased after October 1, but her duties were less rigorous. Reading the order as a whole, the ALJ was not persuaded that the increased symptoms represented a “substantial and permanent aggravation” of the claimant’s condition. Rather, the ALJ concluded the increased symptoms were the logical result of an already advanced disease process, and that the need for surgery already existed on October 1. The mere fact that the evidence might have supported a contrary conclusion affords no basis for relief on appeal. See Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). To the extent the claimant’s testimony was subject to conflicting inferences, the ALJ resolved the conflicts in Pinnacol’s favor.
The ALJ’s finding that the claimant’s duties after October 1 required her to lift fewer packages is also supported by plausible inferences. The claimant testified that her duties before October 1 required her to place as may as 126 “T drives” on a cart and push it across the warehouse. The cart could weigh between 600 and 800 pounds. She was also expected to lift as many as six boxes onto a cart and wheel them onto the production floor. (Tr. pp. 27-28, 67). After October 1, the claimant stated, she delivered from 10 to 20 packages in the morning and 18 to 50 packages in the afternoon. (Tr. P. 67). The ALJ could logically infer from this evidence that the duties after October 1 did not require the claimant to lift as many items. It is true that the claimant’s testimony was somewhat conflicting on this point, but the ALJ resolved the conflict against Argonaut.
We also disagree that Dr. Wittenberg’s opinions do not support those of Dr. Hughes. The history the claimant gave to Dr. Wittenberg shows the claimant experienced a sharp increase in symptoms in June 2001, which was contemporaneous with the increase in duties. This increase in symptoms supports the opinion of Dr. Hughes that the deterioration of the claimant’s back condition already necessitated surgery by the time Pinnacol assumed the risk.
Neither does the absence of any diagnostic imaging tests prior to October 1, 2001, vitiate the opinion of Dr. Hughes. Indeed the MRI was conducted within a short time after October 1, and was indicative of an already serious and advanced degenerative condition. Dr. Hughes was of the opinion that the degenerative process had been ongoing before the change in insurers. The weight to be accorded this opinion was for the ALJ.
Insofar as the Argonaut makes other arguments, they are factual in nature and we find them to be without merit.
II.
Argonaut next contends it was denied due process of law because the ALJ refused to allow Argonaut to file a post-hearing position statement. Argonaut contends this deprivation is particularly egregious because, at the commencement of the hearing, the ALJ accepted position statements from the claimant and Pinnacol. We are not persuaded.
It is true that due process contemplates the right to make argument to the fact-finder concerning the evidence and the law. Major Medical Insurance Fund v. Industrial Claim Appeals Office, 77 P.3d 867, 870
(Colo.App. 2003). However, Argonaut cites no precedent holding that the ALJ is required to afford the parties an opportunity for written argument, and we are not aware of any such precedent.
Moreover, Rule of Procedure VIII(I) (5), 7 Code Colo. Reg. 1101-3 at 30, provides that an ALJ “may” allow oral argument at the conclusion of a hearing, and that written position statements “may” be filed with the ALJ’s approval. Thus, under this rule, the type of argument to be permitted is left to the ALJ’s sound discretion.
Here, the ALJ afforded Argonaut the opportunity to make an opening statement at the commencement of the hearing and a closing statement after conclusion of the evidence. Consequently, the ALJ afforded Argonaut an opportunity to make argument concerning the evidence and the law, and to respond to arguments made by opposing counsel. The ALJ apparently concluded, after hearing the evidence and Argonaut’s oral argument, that a post-hearing written argument would not be of assistance in resolving the issues. The mere fact that other parties presented position statements at the commencement of the hearing did not require the ALJ to permit argument in written form at the conclusion of the hearing. Under the circumstances, we cannot say the ALJ abused his discretion in denying Argonaut’s request to submit a written argument. See Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999) (ALJ has broad discretionary authority in the conduct of hearings and ALJ’s rulings will not be disturbed unless an abuse is shown); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988) (ALJ not obligated to permit post-hearing depositions).
IT IS THEREFORE ORDERED that the ALJ’s orders dated February 27, 2003, and April 13, 2004, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________ David Cain
__________________ Dona Halsey
Dawn Zapiecki, Lafayette, CO, Exabyte Corporation, Boulder, CO, Raymond Abril, Argonaut Insurance, Scottsdale, AZ, Legal Department, Pinnacol Assurance — Interagency Mail, Michael P. Dominick, Esq., Boulder, CO, (For Claimant).
Gregory Daniels, Esq., Denver, CO, (For Respondents Exabyte Corporation and Argonaut Insurance).
Connie Hulst, Esq., Denver, CO, (For Respondents Exabyte Corporation and Pinnacol Assurance).