W.C. Nos. 4-268-899, 4-264-529Industrial Claim Appeals Office.
August 7, 1998
FINAL ORDER
United Parcel Service/Pfizer (UPS) and its insurer, Liberty Mutual Insurance Company (collectively the Liberty Mutual respondents), seek review of an order of Chief Administrative Law Judge Felter (ALJ) which required them to pay benefits for an occupational disease. The claimant also petitioned for review of the ALJ’s order insofar as it denied psychological treatment. We affirm.
The claimant began full-time employment at Valleylab, Inc. (Valleylab) as an assembler in 1985. In the summer of 1993, the claimant was transferred to the job of senior distributor. In 1993, the claimant also obtained part-time employment as a package-handler at UPS, loading and unloading trailers. The ALJ found that the UPS job required the claimant to climb in and out of truck beds, climb ladders, and jump in and out of trucks which caused him to hit his knees. On October 15, 1994, the claimant obtained a promotion. Thereafter, he did not load or unload trailers.
The claimant testified that he began experiencing knee pain in October 1994. He was subsequently diagnosed with bilateral patella tendinitis in his knees.
On February 21, 1995, the claimant hit his knee while climbing a ladder at UPS. Thereafter, the claimant was medically restricted from performing his regular employment. Initially, Valleylab did not have work within the claimant’s restrictions, but, on August 21, 1995, Valleylab offered the claimant modified work which the claimant accepted. However, the claimant failed to appear for work as instructed, and was discharged from his employment.
The ALJ determined that the claimant sustained an occupational disease to his knees bilaterally. Crediting the opinions of Dr. Kawasaki, the ALJ found that the claimant’s job duties at UPS “caused and/or substantially, permanently aggravated” the occupational disease, and that the claimant’s last injurious exposure was October 15, 1994, after which he no longer loaded and unloaded trailers. The ALJ also found that the February 21 industrial accident did not substantially aggravate the occupational disease. Further, the ALJ found that the occupational disease was neither caused nor substantially permanently aggravated by the claimant’s employment Valleylab.
Based upon these findings, the ALJ concluded that the Liberty Mutual respondents are solely liable for the occupational disease. Consequently, the ALJ dismissed and denied the claim against Valleylab and its insurer, Employers’ Insurance of Wausau.
The ALJ also found that insofar as the claimant requires psychological treatment, the claimant failed to establish a causal connection between the psychological problems and the occupational disease. Further, the ALJ found that the claimant did not sustain a compensable mental impairment as defined by § 8-41-301(2), C.R.S. 1997. Therefore, the ALJ denied the claimant’s request for medical benefits for psychological treatment.
I.
On review the Liberty Mutual respondents do not dispute the ALJ’s finding that the claimant suffered an occupational disease. Further, they concede the claimant was injuriously exposed to the hazards of the disease at UPS up to October 15, 1994. However, they contend that the claimant’s work at Valleylab was almost identical to his work at UPS, and the claimant was employed full-time at Valleylab until April 1995. Therefore, they argue that the record compels a finding that the claimant was last injuriously exposed to the hazards of the disease at Valleylab. We disagree.
Section 8-41-304(1), C.R.S. 1997 provides that
“[T]he employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.”
Whether a specific “concentration” of the disease-producing agent is injurious and whether the claimant’s condition has been substantially and permanently aggravated by the injurious exposure are questions of fact for the ALJ. Union Carbide Corp. v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (1978); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Further, where the evidence is subject to conflicting inferences, the issue on review is whether the ALJ’s inferences are permissible in light of the totality of the circumstances Lantern Inn v. Industrial Commission, 624 P.2d 929 (Colo.App. 1981).
Here, the record contains highly conflicting evidence on the cause of the claimant’s knee problems. The ALJ resolved the conflict by crediting the opinions of Dr. Kawasaki. There is substantial evidence in Dr. Kawasaki’s reports to support the ALJ’s finding that the claimant’s occupational disease was neither caused nor permanently aggravated by his employment with Valleylab. Therefore, it is immaterial whether the record contains evidence which, if credited, might support a contrary determination.
Dr. Kawasaki reviewed a job site analysis and video tape of the claimant’s duties as senior distributor at Valleylab. As a result, Dr. Kawasaki opined that “it is unlikely” the claimant’s activities at Valleylab were “causative” of the development of the occupational disease. Further, while Dr. Kawasaki acknowledged that the claimant’s work activities could irritate his knee problems, he opined that the activities “were not likely a permanent aggravation.” (Dr. Kawasaki report September 26, 1997).
Dr. Kawasaki’s testimony is consistent with the evidence that the claimant attributed his knee problems to his work at UPS, and the testimony of Nancy Barnett from Valleylab. (Tr. pp. 37, 53; Dr. Bronstein report dated April 14, 1995). Further, Dr. Kawasaki’s opinion is buttressed by the August 5, 1997 job analysis of vocational rehabilitation consultant Patrick Renfro (Renfro), who conducted an analysis of the job of senior distributor. Renfro opined that the job was in the light-medium work category and “did not require excess wear and tear on [the claimant’s] lower extremities and specifically his knees beyond that which he would be as likely to encounter away from the work place or in other jobs.” Renfro also opined that it was more probable the claimant experienced knee problems secondary to work at UPS than his work at Valleylab. Thus, there is substantial evidence supporting the ALJ’s determination that the claimant was not last injuriously exposed to the hazards of the disease at Valleylab.
II.
The claimant contends the ALJ erred by finding that he did not sustain a compensable psychiatric injury. In support, the claimant cites the reports of Dr. Shih, Dr. Entin, and Dr. Meier and the Division-sponsored independent medical examination (IME) of Dr. Miller who opined that the claimant’s need for psychiatric treatment is related to the occupational disease. The claimant argues that Dr. Miller’s finding of a causal connection between the need for psychological treatment and the occupational disease is binding because it was not overcome by “clear and convincing evidence.” We disagree.
Admittedly, the record contains medical evidence that the claimant’s psychiatric problems are at least partially attributable to the occupational disease. However, the ALJ was free to credit the opinion of one physician to the exclusion of all other medical evidence. Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992). The ALJ was most persuaded by the opinions of Dr. Kawasaki. In his report of March 4, 1997, Dr. Kawasaki opined that the claimant’s depression is “more related to losing his job at Valleylab and subsequent litigation rather than the injury itself.”
Moreover, the claimant testified that he was depressed over losing his job at Valleylab. (Tr. pp. 21-22). He also admitted that prior to losing his job he had not sought treatment for depression and had no need for such treatment. (Tr. p. 22).
Based upon this evidence, the ALJ could, and did, find that Dr. Miller’s opinion was overcome by “clear and convincing evidence.” Furthermore, the ALJ determined that insofar it was related, the “good faith” termination of the claimant’s employment at Valleylab constituted an efficient intervening injury, which severed the causal relationship between the occupational disease and the claimant’s need for psychological treatment. (Tr. p. 73) CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings).
Because the ALJ found that the claimant’s psychological problems are a result of his employment discharge at Valleylab, it was not improper for the ALJ to consider whether the claimant suffered compensable mental impairment as defined by §8-41-301(2). However, the ALJ found that the termination of the claimant’s employment was an action taken in “good faith” by Valleylab, and § 8-41-301(2)(a) states that mental impairment is not compensable if it results from a job termination “taken in good faith by the employer.” See Holme, Roberts and Owens v. Industrial Claim Appeals Office, 800 P.2d 1332 (Colo.App. 1990). Therefore, we perceive no error in the ALJ’s finding that the claimant failed to prove a compensable claim for mental impairment.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 3, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 7, 1998 to the following parties:
Epifanio P. Garcia, 121 E. 5th St., Loveland, CO 80537
Steve Shoemaker, United Parcel Service, 5020 Ivy St., Commerce City, COP 80022
Employers Insurance of Wausau, Attn: George Fairbanks, 8489 East Orchard Rd., Ste 1400, Englewood, CO 80111
Valleylab, Inc., Pfizer Hospital Products Group, Attn: Mark D. Magill, 5920 Longbow Dr., Boulder, CO 80301
Margaret Malone, Liberty Mutual Insurance Co., 13111 E. Briarwood, Ste. 100, Englewood, CO 80112
Larry R. Martinez, Esq., 1200 17th St., Ste. 1700, Denver, CO 80202 (For Wausau Respondents)
Jack Taussig, Esq., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
John M. Connell, Esq. David R. Little, Esq., 1675 Larimer St., Ste. 710, Denver, CO 80202 (For the Claimant)
BY: _______________________