W.C. No. 4-334-221Industrial Claim Appeals Office.
September 14, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which awarded the claimant, a nurse, medical benefits for treatment of hepatitis C (HVC). The respondents contend the ALJ’s order violated our Order of Remand because the ALJ’s order refers to evidence which we held to be inadmissible. The respondents further contend the award of medical benefits is not supported by substantial evidence because the ALJ failed to give sufficient weight to expert medical testimony on the issue of causation. We affirm.
This matter was before us previously. In our Order of Remand dated March 31, 2000, we set aside the ALJ’s order dated August 13, 1999. We held the ALJ improperly considered hearsay testimony concerning the contents of a laboratory report indicating the presence of HVC in the patient population at the respondent-employer’s treatment facility. However, we also concluded the record contained evidence from which the ALJ could find the claimant contracted HVC as a result of exposure to blood while in the course of her duties as a registered nurse. We then remanded the matter for entry of a new order consistent with our views.
In his order on remand dated May 1, 2000, the ALJ incorporated many findings from his prior order dated August 13, 1999, but made certain modifications. Specifically, the ALJ amended Finding of Fact 8 by deleting any reference to the laboratory report. The ALJ also “modified” Finding of Fact 9 “to delete the last sentence” which states that, “Dr. Orent was unaware of the fact that Linda Cowley had seen a lab report which established that one individual at the facility had Hepatitis-C.”
Ultimately, the ALJ found the claimant proved by a preponderance of the evidence the HVC infection was “proximately caused by an exposure arising out of and in the course of her employment.” In so doing, the ALJ discredited Dr. Orent’s testimony finding that Dr. Orent “offered no specific basis” for his opinion the claimant probably did not contract HVC during her employment with the respondent. The ALJ classified Dr. Orent’s opinion as “speculation.” Instead, the ALJ credited the opinion of Dr. Silveira that the claimant’s employment was the “most likely” source of the claimant’s infection.
I.
On review, the respondents contend the ALJ’s May 1, 2000, order is not consistent with our Order of Remand because the May 1 order refers to the stricken laboratory report. However, this argument is without merit. First, the ALJ’s May 1 order expressly adopted the ALJ’s August 13, 1999, findings “insofar as they are not inconsistent with the Order of Remand.” Further, the respondents have taken out of context the ALJ’s May 1 reference to the laboratory report. The ALJ’s May 1 order mentions the laboratory report for the purpose of deleting the report from Finding of Fact 9. Thus, the ALJ complied with our Order of Remand.
II.
The respondents next contend the ALJ erred in finding Dr. Orent’s opinion concerning causation was “speculative.” The respondents point out that Dr. Orent testified the claimant’s medical records indicate the claimant was suffering from symptoms of HVC, including abnormal liver function, prior to her employment with the respondent-employer. Further, the respondents point out there is evidence the claimant stuck herself with a needle when administering a tattoo when she was 13 years old. We find no error.
The question of whether the claimant proved she developed HVC as a result of a work-related exposure to blood was one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Even if the exact cause of the claimant’s contraction of the infection was “shrouded in mystery,” the claimant is entitled to recover if she established “circumstances indicating with reasonable probability that the injury resulted from or was precipitated” by her work-related activities. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968).
Because the issue of causation 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. 2000. 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 he drew from the evidence. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Although expert medical opinion is not necessary to prove causation, where such evidence is offered it is for the ALJ as fact finder to assess the weight and credibility of the experts’ opinions. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Finally, we note the ALJ need not specifically reject every piece of evidence which he finds unpersuasive as long as the findings are sufficient to demonstrate the basis of the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the record contains both circumstantial and expert opinion supporting the ALJ’s finding that the claimant proved a causal relationship between her employment and the contraction of HVC. The claimant and another witness testified that claimant was exposed to blood while performing duties as a registered nurse for the respondent-employer. The claimant testified these exposures were more frequent and of greater magnitude than she experienced in other jobs. Further, Dr. Silveira, who was familiar with the claimant’s medical history including the tattoo incident, opined that claimant’s employment “seems most likely a source of infection.”
Neither are we able to say the ALJ erred as a matter of fact in classifying Dr. Orent’s opinion as “speculative.” Dr. Orent’s testimony does not rule out the possibility the claimant contracted HVC as a result of exposure to blood while employed by the respondent-employer, but Dr. Orent opined the claimant probably contracted HVC prior to her employment because the claimant’s medical history revealed elevated liver functions as early as 1989. (Tr. March 1, 1999, pp. 28-30). However, Dr. Orent also conceded he did not know what caused the claimant to develop HVC, and stated chronic alcoholism could have elevated the claimant’s liver functions. As the ALJ found, the record contains evidence the claimant engaged in heavy drinking in 1989 and 1990. Under these circumstances, the ALJ was not compelled to credit Dr. Orent’s opinion concerning causation, and we decline the respondents’ invitation to substitute our judgment for that of the ALJ concerning the relative weights to be assigned the expert medical opinions. The basis of the ALJ’s order is clear, and his failure to discuss every aspect of Dr. Orent’s testimony is not fatal.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 1, 2000, 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. 2000. 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 September 14, 2000 to the following parties:
Loretta J. Roe, 2528 N. Nevada Ave., Colorado Springs, CO 80907
Community Care of America, Inc., 515 Fairview Ave., Canon City, CO 81212-2863
Gary Hardy, Administrator, Prospect Lake, 1420 E. Fountain Blvd., Colorado Springs, CO 80910
Reliance National Indemnity, 7600 E. Orchard Rd., #310S, Harlequin Plaza South, Englewood, CO 80111
Gale Frost, Gallagher Bassett Services, P. O. Box 151509, Austin, TX 78715
Gallagher Bassett Services, The Quorum West, 7935 E. Prentice Ave., #305, Englewood, CO 80111
Anne Smith Myers, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents Prospect Lake and Gallagher Bassett Services)
BY: A. Pendroy