W.C. No. 4-011-512Industrial Claim Appeals Office.
November 28, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Rumler (ALJ Rumler) which awarded medical benefits, but denied the claim for temporary and permanent disability benefits. We affirm.
In an order dated August 19, 1992, ALJ Kubitschek determined that the claimant sustained a compensable injury which resulted from workplace exposure to chemicals. ALJ Kubitschek found that these exposures, which allegedly occurred between November 1990 and February 4, 1991, exacerbated the claimant’s preexisting asthma. We affirmed the ALJ’s order in our Final Order dated February 9, 1993.
The respondent appealed our order to the Court of Appeals. In an opinion dated March 31, 1994, the court set aside our order and remanded the matter with directions. The court held that ALJ Kubitschek made insufficient findings of fact concerning whether or not the claimant’s “asthma” was aggravated by hazards to which she was equally exposed outside of her employment. In so doing, the court relied on Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), for the proposition that, if there is no evidence that occupational exposure to a hazard is a necessary precondition to the development of a disease, “a claimant suffers from an occupational disease only to the extent that the occupational exposure contributed to the disability.”
The court went on to state that, because findings concerning exposure to non-industrial hazards constitute “an integral element of a claim for occupational disease, the determination of which is dispositive of compensability, specific findings are necessary.” Consequently, the court remanded for the entry of specific findings “on the issues of whether and to what extent claimant was exposed to a hazard outside her employment, and of when maximum medical improvement was achieved.”
On remand, the matter was assigned to ALJ Rumler, and she conducted an additional hearing in accordance with the court’s opinion. Based on the prior record, as well as evidence received at the hearing, ALJ Rumler found it unnecessary to determine whether the claimant suffers from asthma or, alternatively, chronic obstructive pulmonary disease. Regardless of which condition exists, ALJ Rumler found that it was not aggravated or exacerbated by workplace exposures in November 1990. Rather, the ALJ credited medical evidence that the claimant’s disabilities were attributable to a respiratory infection unrelated to her employment.
However, ALJ Rumler also found that the claimant’s preexisting lung condition was aggravated on February 4, 1991 when she “dashed” around the workplace. Nevertheless, the ALJ relied on medical evidence from Dr. Repsher and Dr. Rose that this aggravation returned to “baseline” within forty-eight hours. Consequently, the ALJ awarded medical benefits, but no temporary or permanent disability benefits.
On review, the claimant first contends that ALJ Rumler’s order is inconsistent with our Final Order, and the opinion of the Court of Appeals. As we understand this argument, the claimant is asserting that ALJ Rumler was bound to accept the prior finding that the claimant had an occupational disease, and merely determine the extent to which the disease was attributable to outside hazards. We find no error.
Initially, we note that our Final Order is of no force or effect. The Court of Appeals set our order aside and remanded with directions. Therefore, it is the scope of the court’s opinion, not our order, which is relevant to the issues involved.
Moreover, we disagree with the claimant that ALJ Rumler’s order is inconsistent with the directives of the Court of Appeals. ALJ Rumler determined, as did ALJ Kubitschek, that the claimant had a preexisting lung condition. Under such circumstances, ALJ Rumler correctly focused on the extent to which the circumstances of the claimant’s employment aggravated or exacerbated the preexisting disease so as to produce disability. See Anderson v. Brinkhoff, supra.
ALJ Rumler determined that none of the disability which the claimant experienced in November 1990 could be attributed to the conditions of employment. Rather, she found that the disability was fully attributable to non-industrial circumstances, namely a virus or bacterial infection. Thus, ALJ Rumler followed the court’s directive by determining the relative contributions of industrial and non-industrial factors.
ALJ Rumler also determined that the claimant’s preexisting condition was exacerbated when she was required to rush around in November 1991. However, the ALJ correctly ruled that, because the claimant’s condition returned to “baseline” within forty-eight hours of the aggravation, no temporary disability benefits were payable. Section 8-42-105(1), C.R.S. (1995 Cum. Supp.); PDM Molding Co., Inc. v. Standberg, 898 P.2d 542
(Colo.App. 1995). Moreover, the record supports the determination that the exacerbation produced no permanent effects.
The claimant also argues that the ALJ’s finding are against the “weight of the evidence.” However, we are bound to uphold the ALJ’s findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). This standard requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). This is particularly true of the ALJ’s resolution of conflicts between the medical experts. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
We have reviewed the extensive record and conclude that the ALJ Rumler’s findings are supported by that portion of the evidence cited in her order. It is true that the ALJ might have reached contrary findings and conclusions, but we decline the claimant’s invitation to substitute our judgment for that of the ALJ.
IT IS THEREFORE ORDERED that ALJ Rumler’s order, dated May 1, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed November 28, 1995 to the following parties:
Geana Joy Dunkin, #360 Morgan, Sedona, AZ 86339
Louisiana-Pacific Corporation, Attn: Ms. Pat Turner, P.O. Box 4000-98, Hayden Lake, ID 83835
Cigna Insurance, Attn: Ms. Ruth Cupp, P.O. Box 2941, Englewood, CO 80110
David L. Smith, Esq., 1630 Welton St., Ste. 300, Denver, CO 80202
(For the Claimant)
Starr Kelso, Esq., P.O. Box 1312, 1010 Ironwood Dr., Coeur d’Alene, ID 83816-1312
(For the Respondent)
By: _____________________