W.C. No. 4-347-891Industrial Claim Appeals Office.
June 23, 1999.
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ) which determined the claimant suffered a compensable occupational disease, apportioned liability based on occupational and non-occupational causes, and ordered a change in the authorized treating physician. The respondents contend the claim is not compensable because the ALJ failed to determine whether the claimant was equally exposed to the hazards of the disease outside his employment, and that the record does not support the ALJ’s apportionment. The respondents also argue the ALJ abused her discretion in ordering a change of physician. We affirm.
The ALJ found the claimant was employed as an “box handler” by respondent Excel Corporation (Excel). This job required the claimant to stand 8 hours per day while lifting boxes weighing between 10 and 120 pounds. The claimant was required to walk on cement floors, as well as uneven flooring and broken pallets. The claimant began this job in December 1987.
In the summer of 1996 the claimant began to experience bilateral knee pain. In July 1997 the claimant was examined by Excel’s designated physician, Dr. Thiel. Dr. Thiel diagnosed osteoarthritis which he attributed to the natural aging process. (Tr. p. 60).
The claimant presented the reports of Dr. Hughes and Dr. Kaiser. Dr. Hughes diagnosed osteoarthritis, but he opined that development of the disease was “significantly accelerated by occupational tasks performed at Excel.” Dr. Hughes apportioned 75 percent of the claimant’s disease to occupational factors and 25 percent to non-occupational factors. Dr. Kaiser also diagnosed arthritis and opined the claimant’s “work situation has been a fairly definite aggravating factor in this overall process and that it has played a role in his current disability status.” Dr. Kaiser recommended the claimant be “directed towards a work situation where he can sit down a fair amount of the time and avoid the already mentioned specific lower extremity activities.”
Crediting the opinions of Dr. Hughes and Dr. Kaiser, the ALJ found that, although the claimant’s employment at Excel was not a necessary factor in the development of osteoarthritis, the circumstances of employment “definitely accelerated the development of this condition.” The ALJ further determined that 90 percent of the claimant’s disease is occupational, and 10 percent non-occupational. In support of this determination the ALJ noted the claimant’s long work history with Excel and the absence of any knee problems prior to 1996.
Further, the ALJ ordered a change in the treating physician. In support, the ALJ cited the claimant’s testimony that he lacked confidence in Dr. Thiel because of Dr. Thiel’s opinions on causation and because of his close connection to Excel.
I.
On review, respondents argue there is “no evidence to sustain the ALJ’s determination that this is a compensable occupational disease.” In support, the respondents note that § 8-40-201(14), C.R.S. 1998, requires proof of the causal relationship between the conditions of employment and the disease, and that the disease “not come from a hazard to which the worker would have been equally exposed outside of the employment.” The respondents assert there is no evidence that the risk of accelerating the claimant’s arthritis was greater on the job than it was outside of work, and they rely on Dr. Thiel’s testimony that the disease was purely non-occupational. We find no error.
Where, as here, the ALJ finds that a disease is the product of dual or concurrent causes, the equally exposing stimulus language of § 8-40-201(14) does not invite a weighing of the various occupational and non-occupational hazards to which the worker has been exposed throughout his lifetime when determining whether the disease is occupational. Rather, the statute “operates to insure that a particular disease results from a hazard which is occupational in nature,” and the claimant suffers “from an occupational disease only to the extent that the occupational exposure contributed to the disability.” Anderson v. Brinkhoff, 859 P.2d 819, 825 (Colo. 1993).
Moreover, once the claimant establishes that a particular disease is to some degree caused, aggravated, or accelerated by occupational hazards, the burden of apportioning disability to non-occupational causes shifts to the respondents. This is true because the equally exposing stimulus provision of § 8-40-201(14) creates an exception to the general rule of liability for occupational diseases. Thus, it is the respondents who “must affirmatively rely upon the existence of [a non-occupational] hazard in order to defeat or reduce” a claim for an otherwise compensable occupational disease. Cowin Co. v. Medina, 860 P.2d 535, 538 (Colo.App. 1992).
The question whether the claimant has carried the initial burden of proof to establish that the disease resulted from the employment and the conditions under which the work was performed is one of fact for determination by the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Consequently, we must uphold the ALJ’s determination of the issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. In this regard, we note that medical evidence of causation is not required. However, to the extent such evidence is presented, assessing its weight and credibility is a matter for the ALJ as fact-finder. Rockwell International v. Turnbull, supra. Further, evidence not expressly credited is considered to have been implicitly rejected. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999).
Here, the ALJ credited the claimant’s testimony concerning the conditions of employment, and the testimony of the claimant’s medical experts which supported the inference of a causal relationship between the circumstances of employment and acceleration of the osteoarthritis. The ALJ’s decision to credit this evidence was fully within her authority as the finder of fact, and we may not interfere with her determinations. Because the claimant proved the requisite causal relationship, the burden shifted to the respondents to establish the presence of non-occupational hazards and prove the degree to which these hazards contributed to the claimant’s disability. If, as the respondents assert, no evidence exists concerning the effects of alleged non-occupational hazards, the deficiency supports the ALJ’s order awarding compensation. Cowin Co. v. Medina, supra.
In any event, we disagree with the respondents that the record is devoid of evidence concerning the extent to which the hazards of employment constituted a stimulus to the claimant’s disease, and therefore, a “peculiar risk” of his employment. Both Dr. Hughes and Dr. Kaiser took extensive histories from the claimant, and these physicians attributed acceleration or aggravation of the osteoarthritis to the claimant’s employment at Excel. Dr. Kaiser explicitly recommended that the claimant seek employment which did not require him to be on his feet. Under these circumstances, the ALJ could plausibly infer that standing and lifting boxes on hard and uneven flooring constituted special hazards of the claimant’s employment at Excel, and that the claimant was not equally exposed to such hazards in any other facet of his life. Although Dr. Thiel’s opinions might have permitted a contrary conclusion, the ALJ implicitly rejected his testimony.
II.
The claimant next contends the ALJ erred in refusing to permit the claimant’s supervisor to testify that no other employees reported suffering injuries similar to that of the claimant. (Tr. p. 52). We find no error.
The ALJ is given wide discretion to determine whether evidence is relevant, and if so, whether it should be excluded under C.R.E. 403. See Cherry Creek School District v. Voelker, 859 P.2d 805 (Colo. 1993). Here, the ALJ did not abuse her discretion in excluding evidence of whether other employees developed the same disease as the claimant. Such evidence was relevant only if the respondents established that the other workers suffered from preexisting osteoarthritis comparable to that of the claimant. The ALJ justifiably refused to permit inquiry into this tangential area.
III.
Respondents next contend the ALJ’s apportionment is contrary to the evidence. The respondents argue that no medical witness attributed 90 percent of the claimant’s disability to occupational factors. We perceive no error.
Historically, there has been no requirement for the claimant to produce expert medical opinion concerning causation and disability. See Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). Rather, lay evidence alone may support a finding of injury-related disability. Savio House v. Dennis, 665 P.2d 141
(Colo.App. 1983). Further, Anderson v. Brinkhoff, supra, indicates that apportionment of disability in occupational disease cases is a question of fact, and the ALJ’s order must be upheld if supported by substantial evidence.
Here, there is substantial evidence to support the ALJ’s apportionment. The mere fact that no medical expert propounded the apportionment adopted by the ALJ is not dispositive. The ALJ was persuaded by evidence that the claimant had no knee problems prior to working for Excel, and that he worked for Excel for nearly a decade before the problems developed. Further, the ALJ’s apportionment differs from that of Dr. Hughes by a mere 15 percent. Under these circumstances, we cannot say the ALJ’s apportionment is unsupported by the evidence and plausible inferences drawn therefrom.
IV.
Finally, the respondents argue the ALJ erred in ordering a change in treating physicians. The respondents reason that the claimant’s dissatisfaction with Dr. Thiel’s opinions concerning the cause of the osteoarthritis does not constitute a “proper showing” for a change of physician under § 8-43-404(5)(a), C.R.S. 1998. We disagree.
Section 8-43-404(5)(a) provides that, “Upon the proper showing to the division, the employee may procure its permission at any time to have a physician of the employee’s selection attend said employee.” We previously held that the ALJ has wide discretion to determine whether the claimant made a “proper showing” justifying a change in the treating physician. Szocinski v. Powderhorn Coal Co., W.C. No. 3-109-400 (December 14, 1998) Brenneman v. McDuff Electronics, W.C. No. 3-936-449 (November 14, 1991). Because the legal standard for review is abuse of discretion, we may not interfere with the ALJ’s decision unless it exceeds the bounds of reason, as where it is unsupported by substantial evidence or contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).
Although the claimant’s dissatisfaction with the designated treating physician does not require a change of physician, evidence of a poor relationship between the claimant and the authorized treating physician may support an order changing physicians. Szocinski v. Powderhorn Coal Co., supra. This is true because inadequate communication and lack of trust between the claimant and the treating physician may impede the treatment process.
Here, the record contains ample evidence to support the ALJ’s decision to authorize a change in the treating physician. The ALJ found as a matter of fact that, contrary to Dr. Thiel’s opinion, the claimant’s condition was accelerated by the conditions of employment. Further, the ALJ found that Dr. Thiel maintains a close working and business relationship with Excel, and this relationship causes the claimant to question Thiel’s objectivity. Thus, we cannot say the ALJ abused her discretion in determining that a change of physician is appropriate.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 10, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed June 23, 1999 to the following parties:
Richard Clark, 17555 County Road V, Ft. Morgan, CO 80701
Deb Carlock, Excel Corp., Caller Service 4100, Ft. Morgan, CO 80701
Excel Corporation, P. O. Box 5610, Minneapolis, MN 55440-5610
Stacy Strickland, Crawford Company, 7000 S. Yosemite, Ste. 510, Englewood, CO 80122
Regina M. Walsh Adams, Esq., 1011 37th Ave. Court, #201, Greeley, CO 80634 (For Claimant)
Kim D. Starr, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526 (For Respondents)
By: A. Pendroy