W.C. No. 4-342-865Industrial Claim Appeals Office.
March 10, 1999.
FINAL ORDER
The claimant seeks review of a Supplemental Order issued by Administrative Law Judge Friend (ALJ) which determined the claimant failed to prove a compensable injury, and therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged that he developed a respiratory disease from occupational exposure to asbestos and other airborne toxins between November 1996 and February 1997. The ALJ found that the “claimant was exposed to small amounts of asbestos and other hazardous and toxic airborne particles” in the course and scope of his employment with the respondent-employer. However, the ALJ determined that the employer provided air filters and that the claimant wore a respirator part of the time he was exposed to asbestos. Further, the ALJ credited Dr. Canham’s opinion that the claimant suffers from chronic obstructive pulmonary disease (COPD) secondary to a history of cigarette smoking and not the work-related exposure to asbestos. Consequently, the ALJ determined the claimant failed to sustain his burden to prove that his respiratory condition is the result of the occupational exposures.
On review the claimant contends that the claim is not based solely on an injurious exposure to asbestos, and that the ALJ erroneously failed to consider whether the respiratory problems are due to an injurious exposure to the “toxic inhalation” of other hazardous materials. We disagree.
The ALJ is not required to provide an explicit rejection of every theory which he finds unpersuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966). Nevertheless, the ALJ’s order, on its face, refutes the claimant’s contention that the ALJ erroneously failed to consider his alternative theories of compensability. As stated above, the ALJ found that the claimant suffered an occupational exposure to “toxic airborne particles” other than asbestos. (Finding of Fact 6). However, the ALJ expressly determined that the preponderance of the evidence failed to establish a causal connection between the exposure and the claimant’s respiratory problems. (Conclusions of Law). Instead, the ALJ found that the claimant’s lung disease is attributable to smoking.
We also reject the claimant’s contention that there is no evidence in the record to support the ALJ’s finding that the claimant has a lung age of between 74 and 87 years “as a result of his smoking habit.” At the commencement of the hearing the respondents submitted a “Trial Brief” and medical records including the November 10, 1997, deposition testimony of Dr. Canham. The claimant had no objection, and consequently, the deposition was received into evidence. (Tr. pp. 7, 8).
Dr. Canham testified that the claimant’s objective findings indicate COPD which he attributed to the claimant’s 18 year history of cigarette smoking. (Canham depo. pp. 15, 16, 18, 23). Furthermore, Dr. Canham stated that in evaluating the claimant’s condition he reviewed a June 3, 1997 spirometer test report (Canham depo. exhibit 3), which indicated that the claimant’s lung age is anywhere from 74 to 87 years. (Canham depo. p. 21). Dr. Canham testified that the claimant’s lung aging of 74 to 87 years is “most likely” the result of his cigarette smoking. (Canham depo. p. 22). Therefore, there is substantial evidence in the record to support the ALJ’s finding, and the claimant has failed to establish grounds for appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated November 20, 1998, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed MARCH 10, 1999
the following parties:
James B. Thibodeau, 1210 River Oaks, Longview, TX 75604
John Wright, Rader Railcar, Inc., 1011 14th St., Fort Lupton, CO 80621-2731
Donna Spohn, Industrial Indemnity, 1471 Shoreline Drive, #200, Boise, ID 83702
H. Earl Moyer, Esq., 1401 Saulsbury Street, Suite 204, Lakewood, CO 80215 (For Claimant)
Gregory K. Chambers, Esq., 3900 E. Mexico Avenue, Suite 1300, Denver, CO 80210 (For Respondents)
BY: ________________