W.C. No. 4-358-281Industrial Claim Appeals Office.
May 1, 2003
ORDER OF REMAND
The claimant seeks review of an order of former Administrative Law Judge Erickson (ALJ Erickson) which denied and dismissed the claim for compensation. The claimant argues, inter alia, that a new hearing must be held because the transcript is insufficient to support appellate review. Specifically, the transcript lacks most of the direct and cross-examination of the respondents’ principal medical expert. We agree the matter must be remanded for further proceedings, although a de novo
hearing is not required.
The claimant alleged that preexisting sinus problems were aggravated by her exposure to chemicals used in her job as an X-ray technician. In support of this contention, the claimant introduced the reports and testimony of her treating physician who opined the claimant became sensitized to unidentified substances contained in developing chemicals. This opinion was corroborated by reports of Dr. Fennelly and Dr. Harrison, both of whom opined the claimant experienced an irritant response to glutaraldehyde, a substance contained in developing chemicals.
However, the ALJ found the claimant’s evidence unpersuasive. In so doing the ALJ relied on industrial hygiene studies showing the absence of toxic chemical levels in the workplace. The ALJ also credited the opinion of Dr. Repsher that the work environment did not aggravate the claimant’s chronic sinusitis. Thus, the ALJ concluded the claimant failed to prove a compensable occupational disease.
The hearings in this matter were held in November 1998 and February 1999. ALJ Erickson issued his order on September 10, 1999, and the claimant filed a timely petition to review. The transcript of the hearings was not completed until January 2002. When the transcript was complete, it was discovered that most of Dr. Repsher’s direct and cross- examination could not be transcribed. Therefore, the parties were directed to attempt to settle the record in accordance with procedures established by C.A.R. 10(c).
Under protest, the claimant submitted a proposed “offer of proof” concerning Dr. Repsher’s testimony. The claimant’s offer states that Dr. Repsher was qualified as an expert in pulmonary medicine. Over the claimant’s objection, Dr. Repsher was permitted to testify that, based on an experiment conducted by Dr. Repsher, glutaraldehyde is not a “harmful chemical.” According to the offer of proof, Dr. Repsher conducted an experiment in which he opened a container of glutaraldehyde in a sealed room. Dr. Repsher experienced no ill effects from this exposure. However, Dr. Repsher admitted he did not know the strength or amounts of glutaraldehyde to which he was exposed. Further, this method of testing has not been recreated by other individuals or subjected to peer review. On November 8, 2002, ALJ Friend entered an order finding it “settled and approved” that the claimant’s offer of proof be included in the record on appeal.
On review the claimant contends that recreation of Dr. Repsher’s testimony under the methodology of C.A.R. 10(c) is insufficient to support appellate review under the circumstances of the case. Relying o Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the claimant also contends that ALJ Erickson erred in permitting Dr. Repsher to render an opinion concerning dangers posed by glutaraldehyde based on the results of Dr. Repsher’s experiment. We consider these arguments together and conclude the matter must be remanded to receive Dr. Repsher’s testimony and for any other necessary proceedings.
The claimant does not dispute that under many circumstances C.A.R. 10(c) provides an appropriate vehicle for settling the record when portions of the testimony or evidence have been lost. However, the claimant correctly argues that in some instances C.A.R. 10(c) may prove an inadequate method for settling the record if the absence of the complete record visits a hardship on the appellant by preventing fair consideration of the issues. See Goodwill Industries v. Industrial Claim Appeals Office, 862 P.2d 1042 (Colo.App. 1993); People v. Killpack, 793 P.2d 642 (Colo.App. 1990). In this regard, we note that we are required to determine whether the ALJ made sufficient findings to support appellate review. Section 8-43-301(8), C.R.S. 2002. The claimant reasons that because ALJ Erickson is not available to assist in the reconstruction of the record, and because Dr. Repsher’s testimony was central to ALJ Erickson’s order denying the claim, a de novo hearing is required to create an adequate record.
In our view, the claimant’s argument concerning the sufficiency of the record is intimately related to the argument that ALJ Erickson erred in admitting Dr. Repsher’s opinion that glutaraldehyde is not a dangerous substance. As noted, Dr. Repsher’s opinion was based, at least in part, on his experiment with the container of glutaraldehyde.
In workers’ compensation cases, the ALJ is required to apply the Colorado Rules of Evidence and the requirements of proof for civil nonjury cases in the district courts. Section 8-43-210, C.R.S. 2002. The claimant’s argument notwithstanding, Colorado does not strictly adhere to the Daubert criteria in assessing the admissibility of testimony predicated on the application of novel scientific processes and theories. Instead, our Supreme Court has elected to apply a fact-specific analysis based on the principles contained in CRE 702. The focus of this inquiry is whether the scientific evidence is both reliable and relevant Masters v. People, 58 P.3d 979 (Colo. 2002); People v. Shreck, 22 P.3d 68, 77 (Colo. 2001). However, when deciding the admissibility of scientific evidence a court may consider the Daubert criteria, which include the following: “(1) whether the technique can and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the scientific technique’s known or potential rate of error, and the maintenance of standards controlling the technique’s operation; and (4) whether the technique has been generally accepted.”People v. Shreck, 22 P.2d at 77. The Shreck court further held that a court must employ CRE 403 in determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, and “issue specific findings as it applies CRE 702 and 403 analyses.” (Emphasis added). People v. Shreck, 22 P.3d at 79.
Here, the claimant’s “offer of proof” does not reveal that ALJ Erickson made any specific findings concerning the reliability and relevance of Dr. Repsher’s testimony or the experiment on which it was based. Neither does the offer indicate that ALJ Erickson ever considered the reliability of the proffered testimony. However, the offer of proof indicates that a number of the Shreck factors which would favor a finding of reliability, including peer review and methods for preventing error, were absent.
Under these circumstances, the record is insufficient to determine whether ALJ Erickson properly exercised his discretion when admitting Dr. Repsher’s testimony that glutaraldehyde is safe, or in relying on Dr. Repsher’s opinion in the final order. Because the record contains no specific findings with respect to CRE 702 and the Shreck criteria, the record is insufficient to support appellate review of the ALJ’s decision to admit Dr. Repsher’s testimony concerning the experiment and conclusions following from the experiment.
The respondents argue the record contains sufficient evidence to support ALJ Erickson’s order, and that regardless of Dr. Repsher’s testimony his opinions were “similarly set forth in Dr. Repsher’s report.” (Respondents’ Brief at 10). However, we find no reference in Dr. Repsher’s report to any experiment which he performed on glutaraldehyde. Thus, we cannot determine how ALJ Erickson might have assessed the credibility of Dr. Repsher’s testimony and report if the ALJ had excluded any testimony and opinions based on the experiment. Similarly, we cannot ascertain how the ALJ might have evaluated the credibility of the physicians who opined that exposure to glutaraldehyde caused the claimant to experience an inflammatory response. Thus, in our view, the absence of findings determining the admissibility of the experimentation evidence cannot be classified as harmless error, and the mere fact the record contains some evidence which would support the order is not sufficient to uphold it.
It follows that ALJ Erickson’s order must be set aside and the matter remanded for further proceedings. However, we do not agree with the claimant that a de novo hearing must be conducted. Rather, the ALJ who enters the order on remand shall review the existing transcript and evidence and consider such evidence when entering the new order. See Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). However, the ALJ must conduct a new hearing to receive the testimony of Dr. Repsher (assuming the respondents still wish to present it), and rule on any objections consistent with the principles discussed herein and other applicable law. The claimant should also be afforded an opportunity to present rebuttal evidence. Once the record is complete, the presiding ALJ shall enter a new order based on the existing record and any new evidence received after remand. Based on these determinations, we need not reach the other issues raised by the claimant.
IT IS THEREFORE ORDERED that the order of ALJ Erickson dated September 10, 1999, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed May 1, 2003 to the following parties:
Rose K. Selenke, 20 Dover St., Lakewood, CO 80226
Medical Imaging of Colorado, P. O. Box 27201, Denver, CO 80227-9011
Legal Department, Pinnacol Assurance — Interagency Mail
Mark D. Elliott, Esq., 7884 Ralston Rd., Arvada, CO 80002-2434 (For Claimant)
Merrily S. Archer, Esq., and Douglas P. Ruegsegger, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
Christopher Leh, Esq., 1050 Walnut, #500, Boulder, CO 80302 (For Respondent Employer)
By: A. Hurtado