W.C. No. 4-227-848, 4-234-634, 4-505-378Industrial Claim Appeals Office.
January 2, 2003
FINAL ORDER
The claimant seeks review of a corrected order of Administrative Law Judge Harr (ALJ Harr) which denied his claim for medical benefits to treat headaches and sinus problems. The claimant contends ALJ Harr was collaterally estopped from redetermining the issue of causation, and that his findings are not supported by the evidence. We affirm.
In November 1995, ALJ Gandy entered a summary order and corrected summary order finding the claimant sustained temporary disability and permanent disability as a result of an exposure to a solvent (trichloroethane) in 1990 and hydrochloric acid in 1994. Both chemical exposures resulted from the inhalation of fumes. ALJ Gandy also ordered the respondent to “pay claimant’s future medical benefits for prescriptions, and medical care to obtain such prescriptions, needed to maintain claimant’s condition.”
In September 2001, the claimant applied for a hearing seeking compensation for treatment of headaches and sinus surgery performed in March 2001. The claimant testified that he developed sinus headaches after the 1990 exposure, and that the headaches became more frequent and severe after the 1994 exposure. One of the claimant’s treating physicians performed surgery to drain the sinuses in March 2001.
The respondent denied liability for treatment of the headaches and the sinus surgery. In support it produced the testimony of Dr. Burgess, the employer’s medical director, who opined the claimant’s headaches and sinus problems were probably caused by common allergies, and that the surgical findings were inconsistent with chemical exposure. This opinion was corroborated by the report of a toxicologist who opined that the claimant’s headaches were not consistent with those found in cases of toxicologic exposure. Another physician opined the claimant probably experienced “rebound headaches” resulting from the abuse of prescription drugs.
The respondent also presented the reports and testimony of Dr. Repsher. As the ALJ found, Dr. Repsher examined the claimant and found “evidence of neither any occupational injury to claimant’s upper airway, including nose, pharynx, sinuses, or larynx, nor any occupational injury to the lower airway.” Instead, Dr. Repsher attributed the claimant’s symptoms to “somatization disorders, prescription drug abuse, and tobacco abuse.”
Crediting the medical reports cited above, and discrediting the claimant’s testimony concerning the headaches, the ALJ concluded the claimant failed to prove that the headaches and need for surgery were causally related to the 1990 and 1994 chemical exposures. Thus, the ALJ denied the claim for medical benefits.
I.
On review, the claimant first contends the ALJ erred in relitigating the issue of causation. In support of this proposition, the claimant notes the ALJ credited the opinion of Dr. Repsher, and Dr. Repsher opined there were no significant chemical exposures. The claimant reasons that by crediting the opinion of Dr. Repsher the ALJ violated the principle of collateral estoppel because ALJ Gandy previously found there were significant chemical exposures which caused permanent injury. We disagree with this argument.
The doctrine of collateral estoppel applies in administrative proceedings, and bars relitigation of factual matters and legal conclusions determined by prior adjudication. In order for collateral estoppel to apply, the following criteria must be met: (1) the issue sought to be precluded must be identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is asserted must have been a party to or in privity with a party to the prior adjudication; (3) there must be a final judgment in the prior proceeding; (4) the party against whom the doctrine is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding. Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001).
Here, the claimant’s argument concerning application of collateral estoppel fails for two reasons. First, the issues adjudicated by ALJ Gandy and ALJ Harr were not identical. ALJ Harr did not find the claimant never sustained any injuries as a result of the chemical exposures. To the contrary, he recognized ALJ Gandy previously resolved these issues. (Findings of Fact 5, 20). The issue considered by ALJ Harr was whether the chemical exposures which ALJ Gandy found to have occurred subsequently caused headaches, sinus problems, and ultimately the need for sinus surgery. Nothing in the summary orders issued by ALJ Gandy purports to address the cause of the headaches or the cause of the need for sinus surgery. See Grover v. Industrial Commission, 759 P.2d 705, 712 (Colo. 1988) (where ongoing medical benefits are awarded, employer remains free to contest claims for future treatment on basis that such treatment is unrelated to the injury).
Similarly, ALJ Gandy’s order does not constitute a final adjudication concerning the cause of the headaches and need for surgery. In fact, because the surgery occurred long after ALJ Gandy’s order, it would have been impossible for him to render a final determination concerning a factual issue which had not yet arisen.
It is true that Dr. Repsher opined the claimant never sustained a significant chemical exposure, and that this opinion is inconsistent with ALJ Gandy’s orders. However, Dr. Repsher also explained that, regardless of whether the claimant sustained any chemical exposures, such exposures could not explain the headaches and sinus problems. This was true because, in Dr. Repsher’s opinion, a chemical exposure sufficient to damage the claimant’s sinuses would also have caused significant injuries to the face, nose and mouth. However, no such injuries existed. (Tr. P. 85). The mere fact that Dr. Repsher did not believe the claimant sustained any chemical exposure did not necessarily invalidate his opinion that if such exposures occurred they were not of sufficient magnitude to cause the claimant’s need for treatment. Thus, the ALJ did not violate the principle of collateral estoppel by relying on the pertinent portions of Dr. Repsher’s testimony and reports.
II.
The claimant next contends the ALJ erred in relying on Dr. Repsher’s testimony because it was inherently unreliable. In support of this proposition the claimant cites Dr. Repsher’s disagreement with ALJ Gandy’s finding that the claimant sustained any significant chemical exposures, Dr. Repsher’s disagreement with opinions of the physician who performed the sinus surgery, and inconsistencies in Dr. Repsher’s testimony. We find no error.
As an initial matter, we note ALJ Harr correctly determined the claimant had the burden of proof to establish that the headaches and consequent need for treatment, including sinus surgery, were caused by one or both of the compensable exposures to chemicals. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The question of whether the claimant met the burden of proof to establish causation was one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, supra.
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. 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, 989 P.2d 251 (Colo.App. 1999). In this regard, we note the weight and credibility to be assigned expert medical opinion on the issue of causation is within the ALJ’s province as fact-finder. Cordova v. Industrial Claim Appeals Office, __ P.3d __ (Colo.App. No. 01CA0852, February 28, 2002). Further, testimony is not incredible as a matter of law simply because it is contradicted, internally inconsistent, or biased. People v. Ramirez, 30 P.3d 807
(Colo.App. 2001). The ALJ may resolve inconsistencies in expert testimony by crediting part or none of the testimony. Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997).
As we have already held, Dr. Repsher’s opinion that the claimant did not sustain any significant chemical exposures does not automatically invalidate his opinions concerning the cause of the headaches and the need for surgery. We believe the ALJ’s order reflects an understanding of this distinction and therefore it was for the ALJ to assess Dr. Repsher’s credibility on the critical issue.
It is also true that Dr. Repsher’s reports and testimony reflect some inconsistencies and misunderstandings concerning certain issues, including the claimant’s smoking history. However, these errors are not fatal to the admissibility and credibility of Dr. Repsher’s testimony. This is particularly true since the essential points of Dr. Repsher’s opinions were largely corroborated by the testimony and reports of the other physicians credited by the ALJ. Similarly, the fact that there was a conflict between Dr. Repsher’s opinions and those of the physicians relied on by the claimant merely presented a conflict in the evidence to be resolved by the ALJ. The ALJ’s resolution of the conflict adversely to the claimant affords no basis for relief on appeal.
The claimant also argues that the evidence compels the conclusion that the headaches and surgery are compensable results of the chemical exposures if Dr. Repsher’s testimony is disregarded. As we have held, the ALJ did not err in crediting Dr. Repsher’s testimony. Moreover, the other reports cited by the ALJ also support the order.
IT IS THEREFORE ORDERED that the ALJ’s corrected order dated order dated May 25, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
____________________________________
Bill Whitacre
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. 2002. 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 ________January 2, 2003 ___________to the following parties:
Vernon Roberts, 17643 County Road U, Ft. Morgan, CO 80701
Public Service Company of Colorado, c/o Michelle R. Scholes, G. E. Young Company, 4251 Kipling St., #510, Wheat Ridge, CO 80033
Kerry C. Koep, Esq., Xcel Energy, 800 Nicollet Mall, #2900, Minneapolis, MN 55402
Mike McCallum, Xcel Energy Health Services/Workers’ Compensation, 414 Nicollet Mall, Minneapolis, MN 55401
William F. Garcia, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
Lawrence D. Blackman, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondent)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: __________A. Hurtado__________