W.C. No. 4-647-531.Industrial Claim Appeals Office.
August 28, 2006.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) dated March 28, 2006 that found the claimant’s salmonella and Reiter’s Syndrome diseases to be compensable occupational diseases. We affirm.
The ALJ found the claimant was employed as a trash collector and regularly came into contact with wet wastes from various sources, many of which were salmonella contaminated materials. The nature of the claimant’s job required him to use his hands to handle salmonella contaminated trash and his gloves would become contaminated with liquid trash, which would then contact the claimant’s face, nose and mouth. The claimant’s home life did not bring him into regular contact with food wastes, animal wastes, or animal carcasses. The claimant’s wife was scrupulous with hygiene in the home.
The claimant sought medical care for gastrointestinal complaints with Dr. Selenke. The claimant was diagnosed with salmonella and Dr. Selenke opined that the claimant’s salmonella was caused by his work as a garbage collector where he came in contact with the salmonella organism.
The claimant was examined by Dr. Gray, a board certified occupational physician who opined that the most probable cause of the claimant’s salmonella was his occupational exposure. The respondents relied on the opinion of Dr. Orent who opined that the claimant’s exposure would almost certainly have come from eating or drinking salmonella infected food or water, not from handling garbage.
The ALJ found that the claimant’s exposure at home for non-occupational hazards of potential salmonella was very small and it was probable that his salmonella was caused by his workplace exposure. Crediting the testimony of the claimant’s medical expert, Dr. Gray, and rejecting the respondents medical expert Dr. Orent opinion as unpersuasive, the ALJ found the claimant sustained a compensable occupational disease of salmonella or Reiter’s Syndrome.
On review, the respondents contend the evidence does not support the ALJ’s finding that the claimant demonstrate by a preponderance of the evidence that he sustained a compensable occupational disease. Specifically, the respondents contend the evidence demonstrates only the possibility, not probability, that the claimant contracted salmonella at work. Rather, the respondents assert that the evidence establishes that the salmonella exists everywhere and the claimant’s disease was caused by hazards to which the claimant was equally exposed outside of his employment including his wife’s cooking, or from his pet dog. We disagree with this argument.
Section 8-40-201(14), C.R.S. 2005, defines an occupational disease as one which results directly from the conditions under which work was performed, is a natural incident of the work, can fairly be traced to the employment as a proximate cause, and “does not come from a hazard to which the worker would have been equally exposed outside of the employment.” The requirement that the hazard not be one to which the claimant was equally exposed outside of employment effects the “peculiar risk” test and serves to insure that the disease is occupational in origin. Anderson v. Brinkhoff, 859 P.2d 819, 822-823 (Colo. 1993).
The question of whether a claimant has proven that a particular disease, or aggravation of a disease, was caused by a work-related hazard is one of fact for determination by the ALJ Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). Consequently, we must uphold the ALJ’s finding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. This standard of review requires that we 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, supra. Thus, it is for the ALJ to resolve conflicts between medical experts, and to resolve any internal inconsistency which exists in the opinions of an individual physician. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968); Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, the ALJ found the claimant proved that it was probable that his salmonella was caused by his workplace exposure and did not come from a hazard to which the claimant was equally exposed outside of the employment.
The respondents’ assertion notwithstanding, this finding is amply supported by the testimony of Dr. Gray, who opined that the claimant probably had contracted salmonella from a work related exposure to salmonella contaminated trash materials, including wet wastes from restaurants, dead animals, animal feces, and other rural, municipal and restaurant waste materials. Dr. Gray testified that based on the claimant’s known occupational exposure to contaminated materials, as compared to no significant non-occupational exposure, it was medically probable that the claimant contracted salmonella at work. Gray Depo. at 22. Exhibit 2 at 10. The finding is also supported by the opinion of Dr. Selenke. Exhibit 3.
It is true, as the respondents argue, that Dr. Orent stated that it is unlikely that the claimant contracted salmonella at work, since salmonella is almost always ingested in contaminated food or water. Dr. Orent concluded that the claimant did not contract salmonella poisoning at work because after a literature search he found no epidemiologic data to suggest that his job posed an increased risk for this disease. However, as pointed out by the ALJ, Dr. Orent agreed that waste products encountered by the claimant as a trash collector would more likely contain the salmonella bacteria than other kinds of materials encountered in normal activities of daily living. Orent Depo. at 19, 24.
The respondents next contend the ALJ erred in relying on Dr. Gray’s opinions concerning the cause of the salmonella because Dr. Gray’s testimony is not credible under the criteria established in People v. Shreck, 22 P.3d 68 (Colo. 2001). We reject the respondents’ argument.
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. 2005. In People v. Shreck, supra, a criminal defendant sought to bar the admission of DNA testing. The court held that CRE 702, governs the admission of all scientific evidence or “other expert testimony.” CRE 702 provides that:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
The Shreck court concluded that application of CRE 702 requires a determination as to the 1) reliability of the scientific principles, 2) the qualifications of the witness, and 3) the usefulness of the testimony for the fact-finder. The court added that the reliability inquiry under CRE 702 should be “broad in nature and consider the totality of the circumstances of each specific case.” Shreck, 22 P.2d at 78.
Both Shreck and CRE 702 contemplate a flexible test which allows an ALJ broad discretion to determine the admissibility of evidence based on an expert’s knowledge, skill, experience, training and education. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995); Denver Symphony Ass’n v. Industrial Comm’n, 34 Colo. App. 343, 526 P.2d 685
(1974). We may not interfere with the ALJ’s determination that a witness has specialized knowledge unless it constitutes an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94
(Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is not supported by the record or applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, the disputed evidence is Dr. Gray’s opinion on the cause of the salmonella and credibility issues raised by the respondents regarding the basis of that expert medical opinion. Thus, the disputed evidence in our opinion is not “novel scientific” evidence of the type that was the subject o Shreck. Rather, this is a case where the ALJ found Dr. Gray’s opinions credible and more persuasive than the opinions of the respondents’ medical expert.
In any event the ALJ addressed the issue of admissibility under C.R.E 702 and Shreck. The ALJ found that the testimony of Dr. Gray was based on his examination of the claimant, diagnosis, and prognosis and was focused on the issue of causation of the claimant’s salmonella. Dr. Gray was qualified as an expert in occupational medicine and in the field of epidemiology. The ALJ found Dr. Gray reviewed scientific literature and rendered a causation opinion based on his reasoned medical opinion that was stated with a reasonable degree of medical probability. The ALJ found the opinion of Dr. Gray was based on reasonably reliable scientific principles, and were useful to the ALJ. Findings of Fact, Conclusions of Law, and Order at 7, ¶ 15. These findings support the conclusion that Dr. Gray’s testimony satisfied the reliability criteria required by CRE 702 and Shreck. Therefore, we cannot say the ALJ abused his discretion by crediting Dr. Gray’s testimony.
We have reviewed the respondent’s additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order issued March 28, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
David B. Mueller, Esq., Grand Junction, CO 81502-3207 (For Claimant).
David Dworkin, Esq., Denver, CO, (For Respondent).
Steven Spears, Rifle, CO, Gallagher Bassett Services, Dana Brendemuhl, Englewood, CO, Waste Management of Colorado, Inc., Grand Junction, CO,