W.C. No. 4-206-188Industrial Claim Appeals Office.
March 5, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ), insofar as the order failed to apportion liability for the claimant’s medical benefits attributable to an occupational disease. We affirm.
The ALJ found that the claimant suffered from a lung condition, apparently chronic obstructive pulmonary disease (COPD), prior to sustaining an occupational disease in November 1993. The respondents do not dispute that the occupational disease constituted an aggravation of the claimant’s COPD caused by exposure to diesel exhaust.
The ALJ found that after incurring the 1993 occupational disease the claimant’s lung condition worsened significantly. By January 1994 the claimant was no longer able to work as a truck driver. Further, he developed pain and weakness in his extremities which was diagnosed as chronic inflammatory demyelinating polyradicular neuropathy (CIDP).
The issue in the case was whether the respondents are fully liable for treatment necessitated by the development of the CIDP. In this regard, the ALJ found that the respondents failed to carry their burden of proof to apportion liability for the medical treatment.
On review, the respondents contend that the ALJ made inadequate findings of fact to support his conclusion that apportionment is inappropriate under Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). In support, the respondents point to a medical report in which an examining physician, Dr. Straight, opined that twenty-five percent of the claimant’s pulmonary disease is the result of exposure to diesel fumes, while the remaining seventy-five percent is attributable to obesity, smoking history, pulmonary infections and sleep apnea. The respondents also point out that one of the claimant’s treating physicians, Dr. Groves, stated that he would “not quarrel with the numbers again, as I have stated that is not my intent to assign percentages to each of these concerns, but I have left that to those who are trained to do so.” The respondents’ argument notwithstanding, we find no error.
Initially, we note that an ALJ is not held to a crystalline standard in expressing his findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to render findings of fact which reveal the basis of the decision. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
To the extent the ALJ made findings of fact, we must uphold them if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
In Anderson v. Brinkoff, our Supreme Court considered the issue of apportionment of benefits for occupational diseases. Specifically, the court considered the effect of § 8-40-201(14), C.R.S. 1997, insofar as that statute provides that the occupational disease must not “come from a hazard to which the worker would have been equally exposed outside of the employment.” The court concluded that the statute creates a kind of “peculiar risk test” which insures that employers are required to pay compensation for “only those diseases which arise from a risk associated with the industry,” and that the industry bears “only those costs associated with its production.” 859 P.2d at 823.
The Anderson court recognized that the correct application of this statutory principle is less than clear where the claimant’s disease has “dual or concurrent causes” which are both industrial and non-industrial. The court resolved this difficulty by stating the following:
“We agree with the court of appeals in Masdin; where there is no evidence that occupational exposure to a hazard is a necessary precondition to development of the disease, the claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability.” 859 P.2d at 825.
It has been held that if the claimant succeeds in establishing that occupational hazards contributed to the disability, the burden shifts to the respondents to establish a right to apportionment under the principles announced in Anderson. See Cowin and Co. v. Medina, 860 P.2d 535 (Colo.App. 1992). The question of whether the respondents carried this burden is a question of fact for resolution by the ALJ. Metro Moving Storage Co. v. Gussert, supra.
Here, the ALJ explicitly found that it was not until after the claimant incurred the 1993 occupational disease that the claimant’s lung condition rendered him unable to work. The ALJ also found that the claimant’s condition deteriorated after 1993, and ultimately led to CIPD. Thus, we understand the ALJ to have ruled that the claimant’s pre-existing lung disease was not “disabling,” within the meaning of Anderson, until aggravated by the occupational disease. Although the respondents presented evidence from Dr. Straight which tends to contradict such a determination, it was for the ALJ to assess the credibility of that evidence. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). Furthermore, the ALJ’s finding is supported by Dr. Groves’ statement that the “occupational exposure factors are responsible for accelerated and premature morbidity which might not otherwise have occurred at this time in the absence of those exposures.” (Groves Report, March 21, 1996).
It follows that substantial evidence supports the ALJ’s finding that the respondents failed to carry their burden of proof, and the findings are sufficient to establish the basis of the order. Cf. Simmons v. WCAS of Colorado, W.C. No. 4-222-793
(November 21, 1995). In reaching this conclusion we take note of Judge Briggs’ concurring opinion in the case of Sky Ute Lodge and Casino v. Cassara, (Colo.App. No. 97CA0082, November 20, 1997) (not selected for publication). There, Judge Briggs questioned whether Anderson v. Brinkoff should apply to the apportionment of temporary disability benefits and medical benefits where the claimant establishes that industrial hazards contributed to the disease. Whatever the merits of that view, we need not reach the issue here since the record does not require apportionment, even under an expansive view of Anderson v. Brinkhoff.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 12, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
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. 1997.
Copies of this decision were mailed March 5, 1998 to the following parties:
Robert Doughty, 26013 County Road 5, Weldona, CO 80653
Western Dairymen Coop, Inc., 12450 Washington St., Thornton, CO 80241-2405
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
W.M. Busch, Jr., Esq., 903 N. Cleveland, Ste. A, Loveland, CO 80537 (For the Claimant)
By: ________________________________