W.C. No. 4-328-945Industrial Claim Appeals Office.
May 21, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) denying his claim for benefits based on an occupational disease. We affirm.
The claimant contended that he developed systemic lupus erythematosus (SLE) and/or progressive systemic sclerosis/scleroderma (PSS) as a result of exposure to silica and vibrations. The claimant asserted that exposures to these hazards occurred between 1974 and 1990 during the period he worked as a rock crusher operator. He last worked as a crusher operator while employed by respondent Gosney Sons, Inc., who was insured by Colorado Compensation Insurance Authority (collectively the respondents).
The respondents’ expert, Dr. Repsher, testified that the claimant’s principal diagnosis is SLE, and that all of the claimant’s treatment and disability is caused by this condition. Dr. Repsher also testified that, from his observation of the claimant at the hearing, there was no visible indications of PSS. (Tr. pp. 43-44, 47, 63).
Moreover, Dr. Repsher opined that the claimant’s SLE is probably “spontaneous” and attributable to genetic factors, not a work-place exposure to silica. This is true because in cases where a worker develops SLE as a result of exposure to silica, the exposure has been “overwhelming” and the worker also exhibits silicosis. However, in this case, the claimant’s lung biopsy revealed low levels of silica, and the claimant did not have silicosis. (Tr. pp. 45, 50).
Under these circumstances, the ALJ concluded the claimant has SLE, but failed to prove that the “contraction of SLE or PSS” is in any way related to his work. In support of this conclusion, the ALJ credited Dr. Repsher’s testimony that the claimant does not have PSS, and that none of his symptoms or disabilities are related to that condition. The ALJ also found the claimant was “genetically predisposed to develop SLE,” and concluded the “exposure to silica did not affect this disease process.” Instead, the ALJ concluded the claimant’s “genetic predisposition to contract SLE is the overwhelming factor contributing to his development of the disease,” and relied on Dr. Repsher’s testimony to support the finding that neither SLE nor PSS was “caused, intensified, or aggravated” by occupational exposure to silica dust.
I.
On review, the claimant first contends that the ALJ erred in finding that a genetic predisposition to develop SLE constituted a “hazard encountered by claimant outside of his employment” so as to defeat the claim for compensability of SLE or PSS. The claimant argues that there is no evidence that he had a “genetic predisposition” to develop SLE. In any event, the claimant argues that even if he had a genetic predisposition, the record demonstrates that his exposure to silica aggravated or accelerated the predisposition so as to cause a compensable occupational disease under the principles established in Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). We find no reversible error.
Section 8-40-201(14), C.R.S. 1997, defines an occupational disease as one resulting directly from the conditions under which the work was performed, which follows as a natural incident of the work, 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 the employment.” Under this statute, the claimant bears the burden of proof to establish that a disease was directly and proximately caused by the employment, and resulted from exposure to a hazard occasioned by the employment. See Cowin and Co. v. Medina, 860 P.2d 535 (Colo.App. 1992). However, a claimant need not establish that the conditions of his employment were the sole cause of the disease if he establishes that the hazards of employment “caused, intensified, or aggravated — to some reasonable degree — the disability for which compensation is sought.” Anderson v. Brinkhoff, 859 P.2d at 824. Moreover, if a disease has multiple causes, some of which are occupational and some of which are not, the claimant has sustained an occupational disease “only to the extent that the occupational exposure contributed to the disability.” Anderson v. Brinkhoff, 859 P.2d at 825.
Generally, questions of causation are matters of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). In determining causation, it is for the ALJ to assess the weight and credibility of the evidence, including opinions offered by medical experts. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). We must uphold the ALJ’s findings to the extent they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
Here, we understand the ALJ to have found that the claimant failed to prove any causal relationship between his work-related exposure to silica, and the subsequent development of SLE. The ALJ was persuaded by Dr. Repsher’s testimony that SLE caused by silica must be the result of overwhelming exposure, and the claimant’s lung biopsy does not reveal overwhelming exposure. Moreover, the ALJ could plausibly interpret Dr. Repsher’s testimony to mean that, although medical science does not understand the precise scientific mechanism behind the development of most cases of SLE, it is probable that SLE is caused by genetic factors not yet fully understood. Cf. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968) (medical evidence supported finding that brain aneurysm was ruptured by physical activity even though precise medical cause remained “shrouded in mystery”).
The claimant makes an extensive attack on Dr. Repsher’s credibility. Although Dr. Repsher did not examine the claimant, he reviewed the medical records. Therefore, there was an adequate basis for his opinion. Rockwell International v. Turnbull, supra. Moreover, Dr. Repsher’s conclusion that the cause of the claimant’s SLE is genetic was based on excluding other causes, including silica based causes, and we cannot say the ALJ erred in accepting this analysis. Rockwell International v. Turnbull supra.
It is true the claimant presented conflicting evidence, including the reports of treating physicians and an expert. However, we decline the claimant’s invitation to substitute our judgment for that of the ALJ concerning the credibility and weight to be assigned this evidence.
The claimant also argues that a finding of “genetic predisposition” does not rule out compensability of his disease. Relying on Anderson v. Brinkhoff, supra, the claimant asserts that his exposure to silica is undisputed, and the exposure constituted the “trigger” which aggravated or accelerated the disease.
If the ALJ’s fourth Conclusion of Law stood alone, the ALJ’s order would be contrary to law. There, the ALJ stated that if an “outside” or non-employment related hazard was an “equal contributor” to SLE, the disease would not be compensable. Such a conclusion is, as claimant argues, contrary to the apportionment contemplated by Anderson v. Brinkhoff.
However, the difficulty with the claimant’s argument is that the ALJ expressly found, on substantial evidence, that exposure to silica did not “cause, aggravate or accelerate” the SLE. (Conclusion of Law 3). In fact, the ALJ found that the “overwhelming” cause of the claimant’s disease was genetic and not affected by exposure to silica.
Since the ALJ found that the conditions of the employment played no role in the disease, the disease is not work-related. Thus, the disease is not compensable. See Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986) ( industrial injury must be “significant” in that it bears a direct causal relationship between the precipitating event and the resulting disability).
Similarly, the ALJ was persuaded that the claimant does not have PSS, but in the unlikely event he does, it is not disabling or causing the need for treatment. Again, these findings are amply supported by the testimony of Dr. Repsher, and we decline to interfere with them.
II.
The claimant next contends the ALJ erred in assigning the burden of proof. The claimant asserts that he established a “prima facie case” that his disease was work-related. Therefore, he asserts the burden of proof shifted to the respondents to disprove causation. We disagree with this argument.
The claimant always carries the initial burden of proof in a workers’ compensation case. Section 8-43-201, C.R.S. 1997. The question of whether the claimant carried that burden is one of fact for determination by the ALJ. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). It is true that, if the claimant succeeds in presenting sufficient credible evidence to convince the ALJ of compensability, the “burden of going forward” shifts to the employer or insurer to rebut the evidence Rockwell International v. Turnbull, supra.
Here, the ALJ found that the claimant failed to present sufficient credible evidence to persuade him that SLE or PSS was caused by the conditions of employment. Thus, the claimant failed to carry his initial burden to establish compensability. The ALJ’s factual finding in this regard is fully supported by the evidence, and therefore, there was no error in the assignment of the burden of proof. See City of Boulder v. Streeb, 706 P.2d 786
(Colo. 1985) (burden of proof always rests with claimant in a workers’ compensation case and there is no presumption in favor of compensability).
III.
The claimant’s remaining arguments concern specific findings of fact made by the ALJ. The claimant argues that these findings are not supported by substantial evidence in the record. We find no error.
The claimant disputes Finding of Fact 5, regarding the claimant’s history as a rock crusher, because it does not discuss the claimant’s jobs prior to 1986. However, we do not understand the finding as disregarding the claimant’s prior employment, but rather the ALJ’s attempt to set forth the claimant’s work history with the respondent-employer. In any event, the ALJ is not required to make findings of fact concerning every piece of evidence so long as the order is sufficient to afford a basis for appellate review. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). It is apparent the ALJ did not consider the claimant’s work as a rock crusher to be significant in light of the low levels of silica in the claimant’s lungs.
The claimant next argues that Finding of Fact 7 is incorrect because there is no evidence that the rock crusher was operating in a dry pit area during the mine safety inspections. However, even if this assertion is true, any error would be harmless. The question of whether the crusher was operating at a dry area on the dates of these inspections did not influence a substantial right of the claimant with respect to the issues under consideration See § 8-43-310, C.R.S. 1997; El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993).
The claimant next argues that the ALJ failed to consider a report of Dr. Mertz dated August 14, 1997. Again, the ALJ’s failure to make findings concerning every piece of evidence does not afford a basis for relief on appeal. Here, the ALJ made findings concerning the evidence he considered to be determinative of the issues involved, and that is all that was required. Riddle v. Ampex Corp., supra.
The claimant next attacks Finding of Fact 28, where the ALJ found that a medical journal article indicates that the “incidence rate for the development of SLE or PSS” with exposure to silica dust is very low. The claimant’s argument notwithstanding, we agree with the respondents that this finding constitutes a plausible interpretation of Table 1 found in the article entitled “Silica Exposure and Autoimmune Diseases.”
The claimant also asserts that Finding of Fact 32 is unsupported by any evidence in the record. However, this finding constitutes a plausible interpretation of statements contained in the article entitled “Silica-associated Connective Tissue Disease.”
We have already rejected the claimant’s final assertion that the ALJ was obliged to credit the opinions of the treating physicians over those of Dr. Repsher.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 6, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed May 21, 1998 to the following parties:
Richard D. Dicamillo, HC 70, Box 252, Antlers, OK 74523
Shelly Horn, Western Mobile, 1400 W. 64th Ave., P.O. Box 21588, Denver, CO 80221-0588
Greg Miller, Western Mobile, Four Corners Division, P.O. Box 1400, Bayfield, CO 81122
Gosney Sons, P.O. Box 367, Bayfield CO 81122-0367
Tracy J. Cross, Esq., 572 East Third Ave., Durango, CO 81301 (For the Claimant)
James B. Fairbanks, Esq., 999 Eighteenth St., Ste. 1600, Denver, CO 80202-2416 (For Respondents Western Mobile)
Paulette Tierney, Crawford Co., 7000 S. Yosemite St., Ste. 150, Englewood, CO 80112-2016
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
By: __________________________________________________