W.C. Nos. 4-274-604, 4-279-598Industrial Claim Appeals Office.
August 28, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) which dismissed and denied his claim for workers’ compensation benefits. We affirm.
In May 1992, the claimant was hired as a correctional officer for the Department of Corrections (DOC). The claimant testified that in early 1993 he began experiencing flu-like symptoms. In late 1993 he was diagnosed with Hepatitis C.
Dr. Jacobs testified that Hepatitis C is generally transmitted through bodily fluids, and the most common method of transmission is a blood transfusion. The claimant’s expert, Dr. Bilir, stated that 40 percent of Hepatitis C patients have a history of intravenous drug abuse, 40 percent have a history of exposure to blood or blood products, and 20 percent involve “idiopathic” blood-to-blood contact. Both doctors agreed that a significant portion of Hepatitis C patients contracted the disease from an unknown etiology.
The exact cause of the claimant’s Hepatitis C is unknown. However, the claimant alleged that he probably contracted Hepatitis C in the course and scope of his employment at the DOC. In support of this contention, the claimant stated that his employment involves daily contact with the bodily fluids of inmates including blood, urine, saliva, and perspiration. Alternatively the claimant alleged that he contracted Hepatitis C on September 6, 1992, when he pricked his left hand on a tattoo gun which was confiscated from an inmate’s cell, or on February 10, 1993, when he lacerated his knuckle on a desk during the search of an inmate’s cell.
Crediting the medical opinions of Dr. Bilir and Dr. Jacobs, the ALJ rejected the claimant’s contention that he was exposed to Hepatitis C during the incidents on September 6 or February 10. In support, the ALJ found that the confiscated “tattoo gun” was used for engraving a radio not tattooing inmates, and did not contain a needle for the transfer of fluids. Furthermore, the ALJ found that the claimant did not present evidence that his blood came in contact with any Hepatitis C blood on February 10. In any case, the ALJ credited Dr. Bilir’s opinion that the claimant was infected with the Hepatitis C virus prior to February 1993 and probably had the disease in 1992. Therefore, the ALJ determined that the claimant failed to sustain his burden to prove that he contracted Hepatitis C in the course and scope of his employment. Instead, the ALJ determined that it was just as probable that the claimant contracted Hepatitis C during a blood transfusion in 1974, in the course of being tattooed, or from an unknown etiology.
I.
On review, the claimant first contends that the ALJ erred in excluding his testimony concerning conversations with the State Epidemiologist. The claimant argues that this evidence would have “shown that Hepatitis C is much more rampant in the prison system than in the general public.” We reject this argument.
The ALJ has wide discretion to control the course of evidentiary proceedings. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We may not disturb the ALJ’s ruling in the absence of an abuse of discretion. Denver Symphony Assn. v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). The standard on review of an alleged abuse of discretion is whether, under the totality of the circumstances, the ALJ’s ruling exceeds the bounds of reason Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Moreover, the claimant must prove significant prejudice before an abuse of discretion is reversible error Williamson v. School District No. 2, 695 P.2d 1173 (Colo.App. 1984).
Here, the ALJ expressly found that one risk factor in the claimant’s exposure to Hepatitis C is:
“working in a prison where there is the possibility of bodily fluid exposure to inmates who have a higher rate of hepatitis C than the general population, especially in Colorado.”
Thus, it appears that the ALJ made the factual determination which the claimant sought to establish through the excluded testimony. Furthermore, neither party disputes this finding. Under these circumstances, we fail to see how the claimant was prejudiced by the excluded testimony. Consequently, any error by the ALJ in excluding the claimant’s conversations with the State Epidemiologist was harmless, and will be disregarded. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
II.
The claimant also attempted to testify that some of the inmates with whom he had physical contact tested positive for Hepatitis C. The respondents objected on grounds that the proposed testimony was hearsay. The ALJ agreed and excluded the evidence.
The claimant admits that he did not subpoena or attempt to introduce the actual DOC medical records. However, he contends that the respondents failed to comply with a promise to produce the medical records, and therefore, argues that his testimony should have been allowed over the respondents’ objection. Furthermore, the claimant contends that because his knowledge of the inmates’ medical condition is based upon medical records maintained by the DOC, his testimony is a “business record” exception to the hearsay rule. We disagree.
Regardless of whether the inmates’ medical records may fall within a “business record” exception to the hearsay rule, we agree with the ALJ that the claimant’s testimony concerning the contents of those records is not an exception to the hearsay rule. See C.R.E. 803. Furthermore, the ALJ was not persuaded that the respondents promised to produce the disputed medical evidence, and the record does not compel a contrary determination. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (statements made by counsel in a pleading may not substitute for evidence which is not in the record). Therefore, we cannot say that the ALJ abused her discretion in refusing to allow the claimant’s testimony. See Rosenberg v. Board of Education of School District #1, supra.
III.
The claimant further contends that the ALJ applied the wrong legal standard in determining that he failed to prove a compensable injury. Specifically, the claimant argues that the ALJ erroneously failed to consider whether he suffered an “occupational disease.” We disagree.
Initially, we reject the respondents’ contention that the claimant did not raise this issue before the ALJ. To the contrary, at the commencement of the hearing, the claimant asserted that his condition is the result of either an accidental injury or an occupational disease. (Tr. p. 4).
Under § 8-40-201(14), C.R.S. (1996 Cum. Supp.), an occupational disease is defined 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 and as a result of the exposure occasioned by the nature of the employment.”
To establish a compensable injury, the claimant is not required to establish the cause of his condition with medical certainty. Cf. CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982 (term “injury” encompasses both accidental injuries and occupational diseases). Instead, it is sufficient for the claimant to present circumstances indicating within a reasonable probability that the injury resulted from or was precipitated by the employment activities, so that ALJ may infer a causal relationship between injury and need for treatment. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968).
However, the ALJ is not held to crystalline standard in articulating her findings of fact. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Neither is the ALJ required to explicitly discuss defenses or theories she rejected as unpersuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966).
Contrary to the claimant’s argument, the ALJ’s order reflects her consideration of the proper legal standard, and the contention that the claimant suffered an occupational disease. The ALJ’s order explicitly states that the issues for adjudication included whether the claimant suffered an “occupational disease in the course and scope of his employment.” The ALJ also expressly acknowledged the claimant’s contention that in the course of his “day-to-day” work activities, he was exposed to the bodily fluids of prison inmates. (Finding of Fact 7). However, the ALJ was not persuaded that the evidence of the claimant’s daily contact with bodily fluids was sufficient to support an inference that the claimant contracted Hepatitis C as a natural incident of the work. See Tr. p. 30; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev’d on other grounds, at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered in reviewing the written findings).
Dr. Bilir also characterized the claimant’s employment as “high risk” for exposure to Hepatitis C. Nevertheless, Dr. Bilir was unable to state whether it was “probable” that the claimant acquired the disease at work or through an earlier blood transfusion (Bilir depo. p. 46), and the ALJ found that the claimant’s evidence, including the testimony of Dr. Bilir, was insufficient to establish a prima facie case of compensability. We read this finding as reflecting the ALJ’s determination that the claimant did not sustain his burden to prove that his condition is the result of either an accidental injury or an occupational disease.
The claimant’s remaining arguments have been considered but do not persuade us there was any reversible error in the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 13, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed August 28, 1997 to the following parties:
Richard E. Likens, 947 H. Street, Salida, CO 81210
Canon City Correctional Facility, Attn: Lorie Embleton, 700 Kipling St., Ste. 4000, Lakewood, CO 80215-5865
Arkansas Valley Correctional Facility, P.O. Box 1010, Canon City, CO 81215-1010
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
Kathryn M. Kaeble, Esq., 999 19th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
By: _______________________________