W.C. No. 4-476-931Industrial Claim Appeals Office.
March 8, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gartland (ALJ) which denied and dismissed the claim for benefits. The claimant argues the evidence does not support the ALJ’s finding the claimant failed to prove a spider bite arose out of and in the course of the employment. We affirm.
The ALJ found the claimant was bitten by an insect, “most likely a brown recluse [spider] or a species related to the brown recluse,” between the morning of September 19, 2000, and the morning of September 20, 2000. The issue in the case is whether the bite occurred while the claimant was at work between 7 AM and 4 PM on September 19, or after he returned home on the afternoon of September 19.
The claimant testified that on September 19 he was working in a trailer inventorying Halloween merchandise contained in boxes. The claimant did not notice being bitten by a spider on September 19, nor did he observe any symptoms of a spider bite when he went to bed on the evening of September 19. However, when the claimant awoke at 5:45 AM the next morning, he noticed his left leg was red and swollen with a “bulls eye mark in the middle.”
After reporting the alleged injury to the employer, the claimant was provided medical treatment which included hospitalization and surgery. Several physicians diagnosed an insect bite, probably by a brown recluse spider. However, Dr. Sandquist, who discharged the claimant from the hospital on October 3, 2000, reported it was impossible to determine whether the claimant had been bitten by an insect, and “whether or not [the bite] was obtained at work or at home.”
At hearing, the respondents introduced the report and deposition testimony of Dr. Sayers, a dermatologist with special expertise in the treatment of insect bites. Dr. Sayers testified the brown recluse spider is not native to Colorado, but is “endemic” to the mid-Southwest including parts of Texas. Further, related species, whose bites are generally not as severe, are found in Texas, New Mexico, Arizona and Southern California. (Sayers Depo. pp. 48-50). Another species, the hobo spider, is found in the northwest United States. Dr. Sayers testified that spiders of this variety may be transported to Colorado in luggage, boxes and lumbering materials. He also stated the brown recluse tends to migrate indoors during cooler weather where it may hide in various locations including the folds of clothing and cardboard boxes. Significantly, Dr. Sayers testified the bite of a brown recluse may manifest symptoms within a few hours, or as long as 12 to 24 hours later. Dr. Sayers opined that, in this case, it would be difficult to identify the precise time at which the claimant was bitten. (Sayers Depo. Pp. 31-32).
Based on circumstantial evidence and the testimony of Dr. Sayers, the ALJ found the claimant failed to carry the burden to prove the insect bite arose out of and in course of the employment. Although the ALJ acknowledged the presence of evidence which would support an inference the bite occurred at work, the ALJ also noted circumstantial evidence supporting the inference that the bite occurred in the claimant’s home. This evidence included the inability of the medical experts to ascribe a precise time to the bite, the presence of stacked boxes in the claimant’s home, the presence of a clothes dryer in the claimant’s garage, and fact of the claimant has relatives in Arizona. Consequently, the ALJ denied the claim.
On review, the claimant argues a “preponderance of the evidence” establishes the claimant was probably bitten at work on September 19. Essentially, the claimant argues the evidence compelled the ALJ to find it is more probable than not that a brown recluse spider, which is not native to Colorado, entered packing materials at the employer’s Plainview, Texas distribution center, was transported to Colorado, and bit the claimant while he was inventorying boxes in the trailer. The claimant also asserts that several of the ALJ’s findings are incomplete, or misleading. We find no error.
The claimant had the burden of proof to establish that the spider bite was caused by an injury arising out of and in the course of his employment. Section 8-41-301(b)(c), C.R.S. 2001; § 8-43-201, C.R.S. 2001; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000). The question of whether the claimant proved causation is generally one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981).
Here, the claimant’s argument confuses the burden of proof applied by the ALJ and the standard of review which we must apply on appeal. Because the question of whether the claimant carried the burden of proof to establish causation is one of fact, the ALJ’s resolution of the issue must be upheld on review if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial claims Office, supra. In contrast, the ALJ applies the “preponderance of the evidence” standard when evaluating the evidence presented at hearing and determining whether the claimant has carried the burden of proof. Under the preponderance of the evidence standard it is solely for the “trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied.” Metro Moving and Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.App. 1995). To the extent the claimant’s appeal invites us to reassess the probative weight of the evidence and the credibility of witnesses so as to reach our own findings concerning the time and place of the insect bite, we are without statutory authority to do so.
Substantial evidence is that quantum of probative evidence which warrants a reasonable belief in the existence of facts supporting a finding without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996). Thus, the substantial evidence test requires us to view the evidence in a light most favorable to the prevailing party. Metro Moving and Storage Co. v. Gussert, supra. Further, the ALJ is not held to a standard of absolute clarity when expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to enter specific findings concerning the evidence which the ALJ finds dispositive of the issues involved, and contrary evidence and inferences are considered to have been rejected by implication. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
The claimant’s argument notwithstanding, substantial evidence supports the ALJ’s finding that the claimant failed to carry his burden of proof to establish the insect bite arose out of and in the course of the employment. The claimant incorrectly argues the ALJ was compelled to infer the spider probably entered packing materials in Plainview, Texas and was transported to the employer’s store in Cortez, Colorado, where it bit the claimant. In fact, the claimant himself testified that most of the Halloween products were imported from overseas, and he did not know whether they had been shipped directly to Cortez, or passed through one of the employer’s distribution centers in Plainview, Texas or Loveland, Colorado. (Tr. pp. 45-46). Thus, as the ALJ implied in Finding of Fact 17, it cannot be determined whether the items which the claimant handled on September 19 were ever in northern Texas, an area that is “endemic to an arachnid related to the brown recluse that also produces a necrotic bite.”
Further, there was some evidence which would support the inference that the insect which bit the claimant was “imported” to the claimant’s home by a stepson who lives in Arizona. As the ALJ noted, a species related to the brown recluse spider is endemic to Arizona. A stepson from Arizona visited the claimant’s home in June or July 1999. Evidence indicates the brown recluse spider may live up to two years in a wide variety of climactic conditions. Of course, it is also possible a brown recluse spider was transported by a third party to a vicinity near the claimant’s home and the spider migrated to the claimant’s home in September 2000. It was for the ALJ to assess the relative weight of this evidence and determine whether the claimant carried the burden of proof on the issue causation.
The claimant also argues there is no evidence the ALJ considered various documents, including articles on the entomology of the brown recluse spider, which were introduced into evidence during Dr. Sayers’ deposition. This argument is without merit.
The ALJ was not required to make specific findings of fact concerning every piece of evidence introduced at the hearing or during the deposition. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. Moreover, our review of the ALJ’s order reflects the ALJ understood the significance of entomology in determining whether the claimant proved a compensable injury. Indeed, Findings of Fact 11 and 17 demonstrate the ALJ considered pertinent evidence and entered findings of fact regarding the evidence which she found determinative of the issue.
The claimant also disputes Findings of Fact 14 and 15. In Finding of Fact 14 the ALJ noted that Dr. Sayers “found no mention” in the claimant’s medical records that the claimant’s wound displayed the “downward necrotic flow” characteristic of brown recluse spider bites. According to the claimant, it is “undisputed” that photographs contained in Exhibit 10 display a downward flow. Therefore, the claimant reasons Finding of Fact 14 is misleading. Further, the claimant argues that Finding of Fact 15, in which the ALJ found that Dr. Sayers testified it was difficult to ascertain when the bite occurred, might have been different had the ALJ recognized the existence of the photographs and their relationship to Dr. Sayers’ testimony. This is true, according to the claimant, because if the claimant’s wound displayed a downward flow it is more likely the claimant was bitten while standing up at work than at home while lying down in bed. We perceive no error.
As the ALJ found, Dr. Sayers testified that his review of the claimant’s medical records did not reveal any evidence of a “gravitational spread” of the spider venom. (Sayers Depo. p. 31). The claimant does not point to any medical record which contains such a notation. Further, although Exhibit 10 contains photographs of the claimant’s wound, we are certainly not qualified to say as a matter of law that these photographs display a downward spread of the venom, or that the ALJ was required to make such a finding. Indeed, from a layman’s perspective, it appears the claimant’s leg was inflamed in all directions. Suffice it to say that on this state of the record we may not conclude that findings of fact 14 and 15 are misleading, or that the ALJ was compelled to draw a different inference.
Insofar as the claimant argues the ALJ was required to admit Exhibit 55 to impeach the testimony of witness Marquez, we find no error. Apparently, the claimant wished to introduce this document to impeach the testimony of the witness concerning what the claimant reported to the witness on the morning after the alleged injury. However, our review of the record reflects the witness admitted that, although he made a written statement, he did not record the claimant reported working in his yard on September 19, nor did the witness record the claimant reported being bitten by a brown recluse spider. (Tr. pp. 161, 167, 171). C.R.E. 613 provides that, “if a witness admits making the prior statement, additional extrinsic evidence that the prior statement was made is inadmissible.” Consequently, we fail to perceive any error in the ALJ’s refusal to admit the document. In any event, failure to receive the document would be harmless because the witness admitted the inconsistency and his testimony was impeached.
Insofar as the claimant makes other arguments, they are purely factual in nature and we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 9, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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. 2001. 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 March 8, 2002 to the following parties:
Stephen M. Douglas, P. O. Box 1213, Cortez, CO 81321
Wal-Mart Stores, Inc., 1835 E. Main St., Cortez, CO 81321-3037
American Home Assurance Co., Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
Bethiah Beale Crane, Esq., 575 E. College Dr., Durango, CO 81301 (For Claimant)
James R. Clifton, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy