W.C. No. 4-541-666.Industrial Claim Appeals Office.
September 2, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which determined the claimant failed to prove he suffered a compensable heart attack and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant has an extensive history of treatment for a preexisting heart condition. In 1997 and 1998 he underwent an angioplasty, atrial fibrillation, quadruple coronary bypass surgery, and a second mitral valve repair.
The claimant was hired by the respondent-employer in May 2000 to work as a security officer. In November 2000 the employer moved its security office into the garage area of its resort complex.
The claimant testified that on May 15, 2001, he reported to work at 2:45 p.m. and spent the first two hours of his shift in the office doing paperwork. The claimant testified he began feeling light-headed while in the office and went outside to get some fresh air. On his way outside, he moved a dumpster in the garage area, which took approximately five minutes. The claimant began feeling worse while outside, so he drove home. (Tr. January 8, 2003, p. 8). At 6:30 p.m. the claimant passed out at home and was taken by ambulance to the hospital where he was treated for a heart attack.
The claimant alleged the polluted air, and specifically intense carbon monoxide fumes in the garage area aggravated his preexisting cardiac condition and caused the heart attack. The claimant testified he suspected carbon monoxide poisoning because the garage frequently had a foul smell and other employees complained of being nauseous while working in the garage. Hospital admission records contain a history of the claimant feeling sweaty and nauseated at 3:30 p.m. on May 15, but contain no mention of suspected carbon monoxide poisoning.
Dr. Downes opined that it was more likely than not the claimant suffered carbon monoxide poisoning which was the cause of his heart attack on May 15, 2001. (Tr. p. 103). Dr. Repsher opined that air quality testing showed carbon monoxide levels in the garage were within acceptable levels. Furthermore, Dr. Repsher opined that the claimant’s symptoms of sweating is not consistent with carbon monoxide poisoning. (Tr. p. 44). Therefore, Dr. Repsher disagreed with Dr. Downes’ opinion that the claimant suffered carbon monoxide poisoning.
The ALJ found that carbon monoxide is an odorless gas, and foul-smelling air in the garage did not establish the claimant suffered from carbon monoxide poisoning. The ALJ further found the garage and security office were tested for carbon monoxide levels, and determined that although the levels fluctuated, they remained below the limits established by the EPA and OSHA. In this regard, the ALJ was not persuaded by the contrary opinions of the claimant’s girlfriend, Linette Williams (Williams). The ALJ also found the employer installed an automated exhaust system in December 2000, and that there was no evidence the exhaust system was not operating correctly in May 2001. The ALJ further found there was minimal traffic in the garage on May 15 because it was the employer’s “off season,” and the claimant smoked cigarettes which is a major source of carbon monoxide exposure.
Based on these findings, the ALJ determined the claimant failed to prove that a carbon monoxide exposure at work was a causative factor in the heart attack. Therefore, the ALJ denied and dismissed the claim for compensation.
On appeal, the claimant contends that a preponderance of the evidence establishes a causal connection between the industrial exposure to carbon monoxide and the heart attack. Relying on the opinions of Dr. Downes, the claimant contends his heart condition was stable before May 15, so the industrial exposure must have been the cause of the heart attack. We are not persuaded there is any reversible error in the ALJ’s decision.
Initially, we note the claimant’s contention that the record is inadequate to permit appellate review due to the “poor quality” of the hearing transcripts, especially the January 8, 2003 hearing. The claimant therefore requests a new hearing.
Section 8-43-213(1), C.R.S. 2002, provides that all testimony taken at hearings “shall either be taken verbatim by a hearing reporter or shall be electronically recorded by the division.” Where an electronically recorded hearing results in a transcript containing inaudible responses, our appellate courts have not required a new hearing if the relevant portions of the transcript are sufficient to permit review of the dispositive issues on appeal. Further, the party asserting insufficiency of the transcript must set forth the nature of the testimony which is allegedly missing from the record. Goodwill Industries v. Industrial Claim Appeals Office, 862 P.2d 1042 (Colo.App. 1993); Intermountain Jewish News v. Industrial Commission, 39 Colo. App. 258, 564 P.2d 132
(1977).
Here, the transcript of the hearing on January 8, 2003, does contain some “inaudible” responses. However, the vast majority of the “inaudible” responses appear to involve isolated words or phrases, and the meaning of the question or answer is easily discerned from the context. Thus, this is not a situation in which we are left to speculate concerning the essential meaning of the testimony given at the hearing.
Moreover, the claimant does not specifically identify any testimony which he believes is absent from the record. Consequently, we conclude the transcript is adequate to permit appellate review. See Martinez v. Pueblo County, W.C. Nos. 4-312-322 et al. (March 30, 2001).
The existence of a preexisting medical condition does not preclude the claimant from suffering a compensable injury, where the industrial aggravation is the proximate cause of the disability or need for treatment. H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990); Subsequent Injury Fund v. State Compensation Insurance Authority, 768 P.2d 751 (Colo.App. 1988). Whether the claimant has sustained his burden to prove the requisite causal connection between the employment and the medical condition for which he seeks compensation is a question of fact for resolution by the ALJ. Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). We must uphold the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002; Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
The claimant is not required to present medical evidence to prove a compensable injury. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 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 record contains highly conflicting medical evidence concerning the probable cause of the claimant’s heart attack. Within his prerogative, the ALJ resolved the conflict in favor of the respondents by crediting the testimony of Dr. Repsher. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Dr. Repsher’s opinion is buttressed by the absence of blood tests on May 15 indicating carbon monoxide poisoning, and we have no basis for interfering with the ALJ’s assessment of the evidence. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997) (ALJ’s credibility determinations binding on review unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness); Arenas v. Industrial Claim Appeals Office, supra. Further, Dr. Repsher’s testimony amply supports the ALJ’s determination that the claimant failed to prove a causal connection between the air quality of the work environment and his heart attack. Hence, we may not disturb the ALJ’s finding that the claimant failed to prove the employment was a causative factor in his heart attack and it is immaterial that the opinions of Dr. Downes, if credited, could support a contrary conclusion. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985).
The claimant also contends there is insufficient evidence to support Finding of Fact 16, in which the ALJ found Williams did not have “any expertise” in the operation of the hand-held air quality monitor, and that the claimant did not present evidence the monitor had been properly calibrated or that Williams had the proper expertise to calibrate the monitor herself. We disagree.
Williams testified she borrowed a carbon monoxide monitor, and because she did not know how to use it, she ordered an operating manual to review. (Tr. October 25, 2002, p. 68). Although she stated she read the manual carefully, the ALJ was not required to credit her testimony or conclude that Williams had developed any particular expertise in using the device. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Williams also admitted she did not know when the monitor had been tested and the ALJ sustained the respondents’ objection to Williams testimony that the monitor was calibrated by the fire department that loaned it to her. (Tr. October 25, 2002, pp. 77, 79).
Dr. Repsher opined that given the substantial difference between the carbon monoxide levels obtained by Williams and the Tolin Mechanical Systems Company, which was hired by the employer to test the carbon monoxide levels in the garage, one was grossly incorrect. Dr. Repsher chose to rely on the results from Tolin Mechanical. (Tr. January 8, 2003, p. 43). Furthermore, Dr. Repsher was persuaded that the new exhaust system installed by the respondents would have prevented the levels of carbon monoxide from being at an injurious level on May 15, 2001. (See
January 8, 2003, p. 50). Under these circumstances, the ALJ could conclude that the readings Williams obtained were not reliable.
We also reject the claimant’s contention the record does not support Finding of Fact 17 where the ALJ found there was “no evidence which suggests” the exhaust system in the garage was not operating correctly as of May 2001. Bill Clausen testified that he recalled the fans in the garage, but he did not recall them working. (Tr. January 8, 2003, p. 63). However, he admitted he did not know anything about the system and saw the fans work when they were turned on manually. (Tr. January 8, 2003, pp. 64, 69). The claimant stated he did not remember the fans working but admitted he did not know how to turn them on. (Tr. January 28, 2003, p. 75). Similarly, Mark Stanley testified that he was not sure the exhaust system worked because he only saw it operating three times. (Tr. October 25, 2003, p. 57).
However, Bryan Trujillo testified that the system was set up so that the fans would only turn on if the carbon monoxide level exceeded a pre-set level. (Tr. January 8, 2003, p. 32). The ALJ expressly credited Trujillo’s testimony, and could reasonably infer that evidence other witnesses did not see the fans actually running was not evidence the fans did not work. Instead, the ALJ implicitly inferred the witnesses did not see them work because the carbon monoxide levels were too low to trigger the automatic operation of the fans.
Finally, the claimant’s contends that Trujillo’s admission that the employer moved the security office out of the garage after May 15, 2001, is an admission against interest which compelled the ALJ to find that the heart attack was the proximate result of carbon monoxide poisoning. We are not persuaded.
A “statement against interest” is a statement:
“which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.”
See C.R.E. 804(b)(3). A statement against interest may be considered by the fact finder in resolving the issue of compensability. See Industrial Commission v. Johnson Pontiac, Inc., 140 Colo. 160, 344 P.2d 186 (1959).
We assume arguendo that Trujillo’s testimony concerning movement of the security office is a statement against interest and an inherent admission that the parking garage was “unfit” for the security office as alleged by the claimant. However, the admission does not necessarily compel the conclusion the garage was unfit due to injurious carbon monoxide levels. Rather, the record is replete with testimony that the employer received numerous complaints that the garage consistently smelled bad. Therefore, the move could have been prompted by factors other than the carbon monoxide levels alleged by the claimant.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 12, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
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. 2002. 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 September 2, 2003 to the following parties:
William F. Yeck, c/o Randall M. Willard, Esq., 315 W. Oak St., #501, Ft. Collins, CO 80521
Carrie Cathcart, Vail Summit Resorts, Inc., P. O. Box 7, Vail, CO 81658
Vail Associates, Inc., c/o Renee Halliburton, G. E. Young Company, 4251 Kipling St., #510, Wheat Ridge, CO 80033
Randall M. Willard, Esq., 315 W. Oak St., #501, Ft. Collins, CO 80521 (For Claimant)
Patricia Jean Clisham, Esq., 1125 17th St.,, #600, Denver, CO 80202 (For Respondents)
BY: A. Hurtado