W.C. No. 4-450-887Industrial Claim Appeals Office.
February 5, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant failed to prove a compensable neurological injury and, therefore, denied her claim for workers’ compensation benefits. We affirm.
The claimant alleged a neurological injury on February 8, 2000, from toxic exposure to a commercial air freshener which was installed in the employer’s restrooms. Following the exposure, the claimant complained of numbness in her face, right upper extremity, and chest.
On February 9, 2000, the claimant sought treatment at the Veteran’s Administration Hospital where she was examined by Dr. Meyer. Dr. Meyer diagnosed Bell’s Palsy likely due to toxin exposure at work.
Later that day the claimant was examined by Dr. Gray, who referred the claimant to a neurologist for additional testing. Dr. Gray admitted some of the claimant’s symptoms did not completely fit the diagnosis of Bell’s Palsy. He also admitted that significant concentrations of ethylene glycol may cause a neurological reaction. (Gray depo. pp. 11, 22). However, he opined that the concentration of ethylene glycol found in the commercial deodorizer used by the employer was insufficient to cause the claimant’s facial neuropathy. (Gray depo. p. 10). Dr. Gray also stated that his review of the medical literature attributed Bell’s Palsy to a viral condition. (Gray depo. p. 12).
Dr. Hall at Kaiser Permanente was consulted on February 10. Based upon the lack of medical literature linking facial paralysis to an occupational exposure, Dr. Hall opined there was no causal connection between the claimant’s toxic exposure on February 8 and the Bell’s Palsy. (Dr. Hall February 25, 2000 report).
Dr. Hughes reviewed the claimant’s medical records, the MSDS (Material Safety Data Sheets) on the commercial deodorant, and medical literature on the cause of facial neuropathy. Dr. Hughes stated he found no articles which related toxic exposures as the cause of facial paralysis regardless of the concentration. (Tr. pp. 97, 98). Further, Dr. Hughes testified that the diagnosis of Bell’s Palsy was a diagnosis of exclusion based upon the results of other diagnostic tests. (Tr. p. 99, 102). Consequently, Dr. Hughes opined the claimant’s facial paralysis was not caused by the occupational exposure. He added that the temporal relationship between the claimant’s facial paralysis and the occupational exposure either indicated an association that was “not known to science” or was a “pure coincidence.” (Tr. p. 111).
Crediting the opinions of Dr. Hughes and Dr. Gray, the ALJ found medical literature refuted the theory that Bell’s Palsy may be caused by chemical odor exposure. Rather, the ALJ determined medical literature attributes Bell’s Palsy to a viral attack on facial nerves. Therefore, the ALJ determined the claimant failed to sustain her burden to prove an injury arising out of and in the course of her employment, and denied her claim for workers’ compensation.
On review the claimant contends there is evidence that the commercial deodorizer used by the employer contained ethylene glycol which is a known source of neurotoxicity to the facial nerves. The claimant also contends all other possible causes of the paralysis were ruled out through diagnostic tests and, therefore, by a process of elimination the Bell’s Palsy was necessarily caused by the industrial exposure. We disagree.
The question of whether the claimant has proven a compensable injury is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory evidence or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Initially, we reject the claimant’s contention the ALJ required the claimant to prove that medical literature establishes a specific connection between Bell’s Palsy and toxic exposures. Rather, the ALJ’s findings concerning the medical literature merely reflect proper assessment of the probative value of the evidence, which is his responsibility. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). Where the medical evidence is subject to conflicting inferences, it is the ALJ’s prerogative to determine the inferences to be drawn, and we are bound by plausible inferences drawn from the record Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, there was a conflict in the medical evidence concerning the probable etiology of the claimant’s facial neuropathy. The ALJ resolved the conflict in favor of the respondents based upon the medical research conducted by Dr. Hall, Dr. Gray, and Dr. Hughes which revealed no causal connection between Bell’s Palsy and chemical exposures. Evidence that Dr. Hughes did not conduct a personal examination of the claimant, that Dr. Gray conducted a brief examination of the claimant, and that Dr. Hall does not generally treat work-related injuries did not preclude the ALJ from crediting their opinions. The claimant’s arguments essentially request that we reweigh the evidence on review and substitute our judgment for that of the ALJ concerning the probative weight of various evidence. However, we have no authority to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
There is substantial evidence in the testimony of Dr. Gray, Dr. Hall and Dr. Hughes to support the ALJ’s finding that while it was “possible,” the claimant failed to prove it was “probable” her condition was caused by an industrial exposure to toxins in the air freshener. (Conclusions of Law p. 4). Because the ALJ’s findings are supported by substantial, albeit conflicting evidence in the record, they are binding on review. Section 8-43-301(8), C.R.S. 2001. Moreover, those findings support the denial of the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 24, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Bill Whitacre
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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 5, 2002 to the following parties:
Patricia Whitaker-Torres, 1637 Chrisler Ave., Schenectady, NY 12303
Colorado Coalition for the Homeless, 2100 Broadway, Denver, CO 80205-2526
American Compensation Insurance Company, _ Beverly Abbate, RTW Colorado, Inc., P. O. Box 6541, Englewood, CO 80155
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Pendroy