W.C. No. 4-250-068Industrial Claim Appeals Office.
July 18, 1997
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Rumler (ALJ). The respondent contends that the ALJ erred in refusing to apportion liability for the claimant’s occupational disease in accordance with Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). We disagree, and therefore, affirm.
The claimant was employed as a reservationist for United Airlines. In November 1993, the claimant experienced laryngitis, due to a non-industrial viral infection. In July 1994, the claimant underwent surgery by Dr. Harris to remove a mass around her left vocal cord. The final pathology was consistent with a benign chronic inflammation of the vocal cord.
The respondent admitted liability for an occupational disease in the claimant’s throat and paid medical and temporary disability benefits. However, based upon Anderson v. Brinkhoff, supra, and Dr. Lipkin’s opinion that forty-five percent of the claimant’s throat problems are due to non-industrial factors, the respondent only admitted liability for fifty five percent of temporary disability benefits.
In Anderson v. Brinkhoff, supra, the Supreme Court held that where there is “no evidence” that an occupational exposure to a hazard is a “necessary precondition” to the development of a disease, the claimant suffers an occupational disease only to the extent that the occupational exposure contributed to the disability. 859 P.2d at 825. Furthermore, where the respondent succeeds in establishing that a portion the claimant’s “disability” is caused by non-industrial factors, they are entitled to an apportionment in accordance with the evidence Anderson v. Brinkhoff, supra; see also Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App. 1984).
Here, the ALJ found that the claimant’s inflammatory condition had a gradual onset due to extensive use of her voice at work after November 1993, which was manifested by a sore throat on the left side. The ALJ also found that the claimant had recovered from the laryngitis, and did not have an “ongoing viral infection” which contributed to her inflammatory problem. See
Summary Order December 9, 1996. Consequently, the ALJ determined that the extensive use of her voice at work for United Airlines was a “necessary precondition” to the development of the claimant’s chronic inflammation, and held the respondent liable for one hundred percent of the claimant’s temporary disability benefits.
Citing the opinions of Dr. Harris and Dr. Lipkin, the respondent contends that the claimant’s disease was the result of multiple factors, some of which are unrelated to the claimant’s employment. Accordingly, the respondent argues that the record does not support the ALJ’s finding that the claimant’s occupational exposure was a “necessary precondition” to the development of the disease. We disagree.
We do not dispute the respondent’s assertion that a “precondition” is a “prerequisite” or “something that must exist before something else can come about.” See Websters Seventh New Collegiate Dictionary (1963). However, the determination of whether a claimant’s occupational exposure to the hazards of a disease is a “necessary precondition” to the development of the disease is a question of fact for resolution by the ALJ. Therefore, we must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). Furthermore, in applying the substantial evidence standard, we must defer to the ALJ’s credibility determinations, and resolution of conflicts in the medical record. See Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
In this case, the record contains conflicting medical evidence concerning the cause of the claimant’s chronic inflammation and resulting ulceration of the vocal cord. The ALJ resolved the conflict by crediting the opinions of Dr. Teter.
In a letter to the claimant dated January 23, 1996, Dr. Teter wrote:
“I can unequivocally tell you that it is my opinion that you would not have had an ulceration had you not been employed in that position for United Airlines. An ulceration of the laryngitis in adult females is almost unheard of except in individuals who are required to use their voice heavily. I will not place a percentage on this but I can unequivocally tell all individuals concerned that this ulceration is undeniably secondary to occupational vocal usage.”
Consequently, Dr. Teter opined that one hundred percent of the claimant’s vocal cord ulceration was caused by her employment.
Moreover, Dr. Teter’s opinions are buttressed by the opinions of Dr. Harris and Dr. Lipkin. In a letter dated December 6, 1995, Dr. Harris opined that “If [the claimant] was not involved in the type of work she currently engages in she would not have the problems that she is currently experiencing.” Further, in apportioning the “etiology” of the claimant’s problems, Dr. Harris stated that “greater than 90% have to do with her position at work and less than 10% have to do with underlying non-occupational factors.” However, he did not identify the non-occupational factors which played a causative role in the claimant’s disease.
Similarly, Dr. Lipkin testified that if the claimant had not been a reservationist it was “unlikely” she would have suffered these throat problems. (Lipkin depo. July 12, 1995, p. 11). Furthermore, even though Dr. Lipkin opined that the claimant’s chronic inflammation may have been caused by multiple factors including the laryngitis, he stated that it was “unusual” for people with laryngitis to develop ulcerations in the vocal cords. (Lipkin depo. November 26, 1996, p. 19). We also note Dr. Lipkin’s agreement with Dr. Teter’s opinion, that benign ulcerations of the larynx are almost unheard in adult females except individuals who are required to use their voice heavily. (Lipkin depo. November 26, 1996, p. 11). Dr. Lipkin added that similar throat problems are seen in patients with severe gastroesophageal reflux or constant post nasal drainage. (Lipkin depo. November 26, 1996, p. 12). However, he admitted that severe gastrointestinal problems or post-nasal drainage were not factors in the claimant’s disease. He also admitted that there was no “real quantitative” basis for his apportionment of the claimant’s disease, and that it was an “educated guess.” (Lipkin depo. November 26, 1996, pp. 13, 14).
Therefore, the record contains substantial evidence from which the ALJ could, and did, reasonably infer that the extensive use of her voice at work was a necessary precondition to the development of the claimant’s chronic inflammation, and that the claimant would not have developed the chronic inflammation in the absence of the work-related exposure to the hazards of the disease. Moreover, the ALJ’s determination supports her refusal to apportion liability. See Anderson v. Brinkhoff, supra. Accordingly, it is immaterial that the record contains some evidence which, if credited, might support a contrary result See Durocher v. Industrial Claim Appeals Office, 905 P.2d 4
(Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 6, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed July 18, 1997 to the following parties:
Virginia V. Warren, 4396 S. Kalispell Cr., Aurora, CO 80015
United Airlines, 7155 E. 38th Ave., Denver, Co 80207-1630
Alexsis Risk Management Services, Attn: Carol Schwartz, One Park Central Bldg., Ste. 410, 1515 Arapahoe St., Denver, CO 80202-2117
Sally L. MacLuckie, Esq., 3515 S. Tamarac Dr., Ste. 200, Denver, CO 80237, (For the Claimant).
Lynn P. Lyon, Esq., 999 18th St., Ste. 3100, Denver, CO 80202, (For the Respondent).
BY: ________________________________