W.C. No. 4-268-197Industrial Claim Appeals Office.
March 3, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which was issued pursuant to our Order of Remand dated April 16, 1998. We affirm.
A brief procedural history is necessary to understand the arguments on review. In April 1995 the claimant was diagnosed with hepatitis C and began treating with Dr. Brooke. The claimant alleged that she became infected with hepatitis C in November 1994, when her skin was punctured by a hypodermic needle concealed in soiled hospital laundry she was sorting in the course of her employment for Quality Linen and Supply (employer).
In an order dated April 2, 1997, the ALJ found that “puncture wounds resulting from used hypodermic needles are a concern of the employer” and that the employer “has a training procedure designed to acquaint all workers with the potential danger.” Further, the ALJ found that the employer provided claimant a hepatitis B vaccination “due to the potential dangers experienced by the Claimant in her daily employment.”
The ALJ also found that, “The medical doctors who have taken a complete history from the Claimant have unanimously opined that the hepatitis C developed as a result of Claimant’s employment at the laundry.” Based upon these findings, the ALJ determined the claimant sustained her burden to prove that the hepatitis C infection arose out of and in the course and scope of her employment. The ALJ also determined that Dr. Brooke and the Community Health Center are authorized providers. Consequently, the ALJ ordered the respondents to pay for the reasonable and necessary medical care rendered by Dr. Brooke and his referrals. The respondents timely appealed.
On appeal we concluded that the ALJ erroneously found that Dr. Brooke’s opinions were corroborated by the opinions of other physicians. Therefore, we set aside the April 2 order and remanded the matter for the entry of a new order.
On remand the ALJ entered an order dated September 14, 1998, which reincorporated the April 2 order. However, the ALJ deleted his prior finding that the examining physicians “unanimously” agreed the claimant’s hepatitis was caused by her employment. Instead, the ALJ credited Dr. Brooke’s opinion that the hepatitis was work-related.
The respondents timely appealed. The respondents asserted that the April 2 was not a final order because it did not award any specific benefits, and therefore, they argue that we exceeded our jurisdiction in issuing the Order of Remand, and that the ALJ lacked authority to issue the September 14 order. The respondents also alleged that the ALJ’s findings are not supported by the record and that the ALJ erroneously relied upon Dr. Brooke’s opinions.
In her answer brief, the claimant argued that the April 2 order is a “final” order which is subject to review. Nevertheless, the claimant requested a Supplemental Order which specifically listed the medical bills to be paid by the respondents.
The ALJ issued a Supplemental Order which lists the medical bills to be paid by the respondents. The Supplemental order contains a certificate of mailing dated December 3, 1998. The respondents timely appealed the Supplemental Order, and allege that it is void because it was not issued within the time prescribed by § 8-43-301(4), C.R.S. 1998.
I.
Admittedly, orders which determine liability but do not award or deny specific benefits are interlocutory and not subject to appellate review. United States Fidelity and Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994); Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986). Accordingly, we have previously concluded that a general award of authorized medical benefits is not a final, appealable order where the respondents have not been ordered to pay any specific medical benefits, and no specific medical benefits were in dispute. However, we adhere to our prior conclusion that the April 2 order was a final order for purposes of review.
The claimant’s Application for Hearing endorsed the issues of compensability, temporary disability benefits and “medical benefits” including whether such benefits were authorized, related to injury and “reasonable necessary.” The respondents endorsed the same issues in their Response to the Application for Hearing. At the commencement of the hearing on March 19, 1997, the parties withdrew the issue of temporary disability, and indicated that the issues in dispute were compensability and medical benefits. (Tr. p. 6).
The claimant testified that the hepatitis has been treated by Dr. Brooke and submitted unpaid medical bills for medical care rendered by Dr. Brooke in April and May 1995. (Tr. pp. 7, 15, 16). The respondents did not present any evidence that Dr. Brooke’s treatment was unreasonable, even though the issue was endorsed for adjudication. Consequently, the ALJ’s order of April 2, 1997, implicitly required the respondents to pay the medical expenses incurred by the claimant in April and May 1995 for treatment by Dr. Brooke, and such further medical treatment which is “reasonable and necessary.”
Because the April 2 order required the respondents to pay specific medical benefits it was a final order, subject to our review. Consequently, our Order of Remand did not exceed our jurisdiction, and the ALJ was authorized to issue the September 14, 1988, order on remand.
Our conclusions in Gonzales v. Public Service Co., W.C. No. 4-131-978 (May 14, 1996), do not compel a contrary conclusion. I Gonzales, we concluded that an ALJ’s general award of medical benefits was not a final order because no specific medical benefits were requested, and the ALJ did not determine what medical treatment was authorized. Thus, Gonzales is factually distinguishable from the circumstances presented here.
Moreover, we assume, arguendo, that the ALJ’s Supplemental Order was not timely issued. However, because the September 14, 1998 order incorporated the April 2 order and the April 2 awarded specific medical benefits, the matter is procedurally ripe for review of the September 14 order, regardless of the Supplemental Order.
II.
The respondents contend that the record does not support the ALJ’s finding of a compensable injury. The respondents contend that the record contains no testimony by the employer’s witness, Cheryl Pitchford, to support the ALJ’s finding the employer testified “to the inherent danger of employment at the laundry.” The respondents also contend that because Dr. Brooke admitted his opinions were “speculative,” and neither Dr. Cull or Dr. Fitzgerald agreed with Dr. Brooke’s opinion, the ALJ erred in relying on Dr. Brooke’s opinion concerning the cause of the injury. We rejected these arguments in our Order of Remand, and the respondents’ further arguments do not persuade us to depart from our prior conclusions.
It is the claimant’s burden to prove a causal connection between the injury and the employment. However, the claimant is not required to establish the precise event which caused the injury. Rather, it is sufficient if the claimant presents circumstances indicating with reasonable probability that the injury resulted from or was precipitated by the employment activities, so that the ALJ may infer a causal relationship between the injury and need for treatment, even if the actual cause is “shrouded in mystery.” See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968).
Furthermore, the claimant need not present medical evidence to support a finding of causation. See Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). However, to the extent such evidence is presented, it is the ALJ’s province to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). An ALJ need not discredit evidence merely because of some inconsistency. Rather, the ALJ may resolve such inconsistency by crediting only part, or none of the testimony Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The record indicates that Dr. Brooke is the only medical doctor who took a complete history of the claimant concerning the cause of the hepatitis. In a letter dated September 26, 1996, Dr. Brooke stated that:
“The usual cause of hepatitis C is being inoculated with blood or blood products, either through the skin or through an IV. There may be other forms of transmission, including sexual, but they are minimal compared to blood and blood products. There is no way for me to speculate how [the claimant] acquired hepatitis C. It is most probable, of course, that she acquired it through an inadvertent needle stick, which she does report in November, 1994. . . . In view of the social and medical history I have obtained from [the claimant], it is my opinion that she did become inoculated by the inadvertent needle stick in November 1994 with hepatitis C.”
Admittedly, the September report is subject to conflicting inferences. However, it was the ALJ’s sole prerogative to resolve the inconsistencies in Dr. Brooke’s report. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). The ALJ’s findings reflect that she resolved the conflict by crediting Dr. Brooke’s opinion that the “most probable” cause of the claimant’s hepatitis C was being stuck with a contaminated hypodermic needle in November 1994. (Finding of Fact 8). We may not interfere with that determination. Therefore, the fact that the report contains statements which might support a contrary interpretation is immaterial. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
Further, the claimant treated with Dr. Cull and Dr. Fitzgerald for an orthopedic injury. In a report dated October 10, 1995, Dr. Cull opined that the orthopedic injury had “no bearing on the etiology” of the claimant’s hepatitis C. On March 19, 1996, Dr. Fitzgerald opined that the claimant’s hepatitis C was not “work related.” Because Dr. Cull and Dr. Fitzgerald only treated the orthopedic injury, their medical reports can reasonably be interpreted as reflecting their opinions that the hepatitis C infection is not related to the orthopedic injury. Therefore, their opinions do not necessarily reflect a disagreement with Dr. Brooke’s opinion that the hepatitis was caused by the claimant’s work in the laundry. Moreover, insofar as the reports of Dr. Cull and Dr. Fitzgerald can be read as being in direct conflict with Dr. Brooke’s opinions on causation, the ALJ was free to reject the opinions of Dr. Cull and Dr. Fitzgerald in favor of Dr. Brooke. See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ resolution of conflict binding) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion); cf. Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961) (substantial evidence not determined by number of witnesses presented by each party).
Finally, the employer’s General Manager, Cheryl Pitchford, testified that getting stuck by a discarded hypodermic needle is a potential problem in the laundry. (Tr. p. 31). She also stated that the employer has a “pretty extensive” program to control contamination and the spread of infectious diseases from exposure to needles in hospital laundry, and that employees are trained to follow the procedure. (Tr. pp. 23, 25, 30). Further, Ms. Pitchford indicated that the employer provides a hepatitis B vaccination for all employees who handle contaminated laundry, that the claimant was given the vaccination. (Tr. pp. 31, 32). The respondents’ arguments notwithstanding, a reasonable inference from Ms. Pitchford’s testimony is that the employer adopted these procedures because it was aware that laundry work carries an “inherent danger” of blood borne infections. See Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (ALJ’s findings may be inferences from circumstantial evidence).
IT IS THEREFORE ORDERED that the ALJ’s orders dated September 14, 1998, 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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed MARCH 3, 1999
the following parties:
Tammy M. Manzanares, 2029 South Corona, Colorado Springs, CO 80906
Quality Uniform Linen Supply, 802 S. Wahsatch Ave., Colorado Springs, CO 80903-4115
Mike Baker, Liberty Mutual Ins. Co., P.O. Box 3539, Englewood, CO 80155-3539
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
David G. Kroll, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
BY: ________________