W.C. No. 4-331-478.Industrial Claim Appeals Office.
December 10, 2004.
FINAL ORDER
Respondent EGG Rocky Flats (EGG) and its insurer Liberty Mutual Insurance Company (collectively the Liberty respondents) seek review of an order of Administrative Law Judge Friend (ALJ) holding them liable for medical treatment of the claimant’s chronic beryllium disease (CBD). The Liberty respondents contend the ALJ’s findings are insufficient to support the order and are not supported by substantial evidence in the record. We affirm.
The claimant was employed at the Rocky Flats plant from 1962 through September 25, 1991. From January 1, 1990 through September 25, 1991, the plant was operated by EGG. Before January 1990 the plant was operated by respondents Dow Chemical Company and Rockwell International, which were insured by Travelers Insurance Company (collectively the Travelers respondents).
The claimant was exposed to beryllium dust while performing various jobs at the plant. Commencing in 1980 the claimant was a supervisor and often working in Building 444 where beryllium was machined and contamination was present. After EGG assumed operation of the plant the claimant continued working in Building 444, although the ALJ found the exposures to beryllium were not as great as before.
In 1989 the claimant was first examined for and monitored for exposure to beryllium. Apparently this continued through 1992, but there was a lapse in monitoring. The claimant sought a hearing to establish liability for such treatment.
Relying on the testimony of the claimant’s treating physician, Dr. Newman, the ALJ found the claimant need monitoring of his CBD every one or two years. Further, the ALJ credited Dr. Newman’s testimony that the claimant’s exposure to beryllium in Building 444 after January 1, 1990, aggravated or accelerated the claimant’s CBD. Consequently, the ALJ ordered the Liberty respondents to provide the treatment recommended by Dr. Newman.
On review, the Liberty respondents contend the ALJ’s findings are insufficient to support appellate review. Specifically, they argue the ALJ made no findings concerning how the claimant’s exposure to beryllium after January 1, 1990 “aggravated or accelerated” the disease process which was already under way. The Liberty respondents also contend that Dr. Newman’s testimony is not credible and legally insufficient to support the ALJ’s finding that the claimant’s disease was aggravated or accelerated by exposure to beryllium while EGG was on the risk. We reject these arguments.
In cases of occupational disease, liability for medical benefits is placed on the employer or insurer “on the risk” when the medical expenses are incurred. Royal Globe Insurance Co. v. Collins, 723 P.2d 731, 733
(Colo. 1986). It has been held that the “insurer on the risk” refers to the insurer which provided coverage to the employer whose conditions of employment caused, aggravated or accelerated the injury so as to cause the need for treatment. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637, 640 (Colo.App. 2001). Thus, the ordinary rules of causation govern liability for medical benefits in cases of occupational disease.
The question of whether the conditions during a particular period of employment have aggravated or accelerated a claimant’s condition so as to cause the need for treatment is one of fact for determination by the ALJ. University Park Care Center v. Industrial Claim Appeals Office, supra. Consequently, we must uphold the ALJ’s determination of this issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. The substantial evidence test requires us to view the evidence in a light most favorable to the prevailing party and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
In this regard, we note that causation need not be established to a reasonable medical certainty, but only to a reasonable probability Morrison v. Industrial Claim Appeals Office, 760 P.2d 654 (Colo.App. 1988). There is no requirement that the ALJ identify the precise scientific mechanism of causation if the evidence as a whole demonstrates causation to reasonable medical probability. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968). Where medical opinion concerning causation is presented, it is for the ALJ to assess its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). To the extent a medical expert’s testimony contains ambiguities or inconsistencies, the ALJ may resolve them be crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Finally, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. The ALJ need only address the evidence and inferences which are found to be dispositive of the issues, and conflicting evidence and inferences are presumed to have been rejected. Further, we may consider findings necessarily implied by the order. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Dr. Newman expressly testified that in his opinion each exposure to beryllium is damaging and aggravates or accelerates any existing CBD, and he described the effects of exposure to beryllium as “cumulative.” (Tr. January 13, 2003, Pp. 56, 193). Further, the claimant testified that his condition worsened after he left employment in 1991. This testimony was corroborated by Dr. Newman who observed that in 1995 the claimant’s oxygen saturation level would fall significantly with minor exercise, and this represented a worsening of the claimant’s condition from 1992. (Tr. December 11, 1998; Pp. 17, 48-49).
Moreover, there was ample evidence the claimant was exposed to beryllium after EGG assumed the risk. The claimant testified that he often did not wear his respirator in Building 444, and that the cleanup of beryllium in that building was continuing in 1991, and even at the time of the hearing in 1998. This testimony was corroborated by Dr. Newman who testified that some cleanup workers assigned to Building 444 developed sensitivity to beryllium despite wearing sophisticated protection gear. Dr. Newman explained that development of beryllium sensitivity in these workers indicates that very low levels of exposure to beryllium can be injurious to sensitive individuals. (Tr. December 11, 199814-16; Tr. January 13, 2003, Pp. 195-196).
Thus, there is substantial evidence in the form of expert testimony, as well as circumstantial evidence, from which the ALJ logically inferred that the claimant’s CBD was aggravated by exposure to beryllium while the Liberty respondents were on the risk, and that this aggravation contributed to the need for the additional medical monitoring recommended by Dr. Newman. It is true there were some inconsistencies in Dr. Newman’s testimony, but the ALJ implicitly resolved them against the Liberty respondents. Considering Dr. Newman’s qualifications as an expert witness, it was for the ALJ to assess the weight and credibility of his testimony.
Neither do we perceive any inadequacy in the ALJ’s findings of fact. The ALJ clearly relied on the claimant’s lay testimony concerning the nature of his employment and exposures to beryllium dust. Further, the ALJ credited the expert testimony of Dr. Newman. The ALJ plausibly interpreted Dr. Newman’s testimony to mean that he believes “cumulative” exposures to beryllium aggravate the CBD by accelerating the disease process, thereby rendering the disease symptomatic and subject to medical intervention at an earlier date than might otherwise have occurred. Indeed, in Dr. Newman’s opinion observation of symptoms and monitoring of the claimant’s condition is necessary to determine when the benefits of medical treatment with drugs outweigh the potential side effects of the drugs involved. (Findings of Fact 4 5; Tr. December 11, 1998, Pp. 58-60; Tr. January 13, 2003, Pp. 61, 96).
We note that the Travelers respondents filed a petition to review the ALJ’s order, but have not filed any brief in support of that petition. The only issue raised in the petition is whether the ALJ erred in finding the claimant “established entitlement to medical monitoring or any other medical care.” Because the Travelers respondents were not ordered to pay any medical benefits, they are not a party aggrieved by the ALJ’s order and have no standing to contest it. Section 8-43-301(2), C.R.S. 2004.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 21, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Bentura M. Romero, Longmont CO, Al Jerman, Risk Mgr No. 53, Kaiser-Hill Company, L.L.C., Golden, CO. Myra L. Jelinek, St. Paul Travelers, Denver, CO, Darlene Cook, Liberty Mutual Insurance Company, Irving, TX, Michael Patrick, Esq., Berthoud, CO (For Claimant).
Lawrence D. Blackman, Esq., Denver, CO, (Representing Respondents Dow Chemical Company, Rockwell International, and Travelers Insurance Company).
Scott M. Busser, Esq., Denver, CO, (Representing Respondents EGG and Liberty Mutual Insurance Company).