W.C. No. 4-767-299.Industrial Claim Appeals Office.
June 30, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated February 19, 2010, that determined the claimant had failed to meet his burden of proof in establishing a compensable work-related injury. We affirm.
The claimant filed a claim for workers’ compensation benefits alleging a work injury to his lungs on July 22, 2008. The claimant argued that the air he breathed at work caused him to suffer from a lung injury. The ALJ found that the claimant suffered from a non work-related medical condition known as “papillomatosis of the larynx.” Papillomatosis of the larynx is caused by infection from the Human Papillomas Virus (HPV). The ALJ found that in adults, the most common cause of HPV is a venereal spread. The ALJ concluded that the claimant had failed to meet his burden of proof in establishing a compensable work-related injury. The claimant appeals.
The claimant contends that the ALJ erred in denying and dismissing his claim because the ALJ misinterpreted and misapplied the pertinent law concerning the determination of compensable occupational diseases. The claimant argues that the totality of the evidence established that he suffered a compensable occupational disease due to his exposure to concrete dust and other pulmonary irritants which sensitized him and caused him to developed irritant-induced asthma.
Section 8-40-201(14), C.R.S. defines an occupational disease as follows:
“Occupational disease” means a disease which results directly from the employment or conditions under which the work was performed, which can
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be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside the employment.
The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). Moreover, if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo. App. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo. App. 1986). Under § 8-40-201(14), C.R.S. the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated — to some reasonable degree — the disability for which compensation is sought Anderson v. Brinkhoff 859 P.2d 819, 824 (Colo. 1993).
Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. Section 8-43-301(8); 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 testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717
P.2d 965 (Colo. App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review under the substantial evidence standard is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). Where conflicting expert opinion is presented, it is solely for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.2d. 1182 (Colo. App. 1990).
The claimant asserts that the ALJ did not understand the nature of his claim. The claimant argues that he did not contend that his work environment caused his papilloma to grow “faster” due to his exposure to concrete dust, thereby leading to the claimant’s acute respiratory failure. Rather, the claimant asserts that his exposure to an environment filled with pulmonary irritant lead directly to the development of irritant-induced asthma.
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The claimant contends that contrary to the conclusion reached by the ALJ there was medical evidence that exposure to concrete dust causes irritant-induced occupational asthma. As evidence in support of this contention, the claimant in his brief offers the following. The claimant argues that his unrebutted testimony was that he worked around pulmonary irritants and as a result he developed difficulty breathing while on the work site. The respondents’ medical expert testified that cement dust is both an irritant and a sensitizer which causes irritant-induced asthma. The medical record documents that the claimant works around “a lot” of concrete and dust. From this the claimant contends that he established a prima facie showing that he suffers from an occupational disease occasioned by the conditions under which his work was performed.
We note that the claimant has failed to provide a transcript of the hearing. The party asserting error has the burden to present a record sufficient to prove the ALJ’s findings are not supported by the evidence. Therefore, we cannot simply assume that the transcript would support the claimant’s contention of what his testimony was or what the testimony from the respondents’ medical expert was at the hearing. To the contrary, we must assume that the ALJ’s pertinent findings of fact are supported by substantial evidence. If the appealing party fails to provide an adequate record, we must presume the ALJ’s pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). We also note that the claimant does not deny that he suffers from a non work-related medical condition known as HPV.
We are not persuaded that the ALJ misinterpreted claimant’s argument as being that his work environment caused his papilloma to grow `faster” due to his exposure to concrete dust, thereby leading to the claimant’s acute respiratory failure. Rather, the ALJ specifically noted the claimant’s contention that exposure to dust, beginning in March 2008, sensitized him and caused him to wheeze and that he subsequently developed bronchial spasms or aggravated underlying asthma. Finding of Fact 5 at 2.
We are persuaded that the ALJ understood the claimant’s argument. However, the ALJ was not convinced that the claimant’s contention was supported by the evidence. Rather the ALJ was persuaded by the opinions of Dr. Clifford, Dr. Hickson and Dr. McClung. The ALJ concluded that the claimant’s lung respiratory condition on July 22, 2008 had nothing to do with work. Rather the sole reason the claimant required additional air on July 22, 2008 was because the air passage in the claimant’s throat grew smaller as the papilloma or wart grew.
Dr. Clifford apparently testified at the hearing but the claimant failed to provide a transcript of the hearing. Nevertheless, the report from Dr. Clifford fully supports the ALJ’s findings. Exhibit D. The ALJ found that Dr. Clifford credibly explained the following. The nature of the claimant’s condition was that he developed a papilloma of
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the larynx. The papilloma caused by infection with the Human Papilloma Virus or HPV. Papillomas are like warts. HPV has no relationship to exposure to dust at work or job duties. Papillomas grow in the narrow opening of the larynx and lead to upper airway obstruction. The obstruction causes wheezing which is not due to asthma, but rather related to the airflow obstruction at the inlet to the thoracic part of the chest. There was no relationship to exposure to dust, aerosols, vapors or any other workplace exposure in the development of the papillomatosis of the claimant’s larynx. There was no aggravation or worsening of the claimant’s condition due to the work at the employer and was an entirely independent medical condition.
In addition, the ALJ relied upon the opinions of Dr. McClung. Dr. McClung testified that the laryngeal papilloma was a wart in the claimant’s throat. McClung Depo. at 12. Dr. McClung testified that the 6 to 7 millimeter opening found by Dr. Hickson on July 22, 2008 would represent a near critical obstruction of the claimant’s airway. McClung Depo. at 12. Dr. McClung testified that it was a reasonable consideration that the obstruction found caused the cascade of events that led to the claimant’s hospitalization on July 22, 2008. McClung Depo. at 12.
The ALJ concluded that the cause of the claimant’s injury was a pre-existing non work-related wart that lodged in the claimant’s throat and grew on its own with no regard to external factors. The ALJ found that there was no credible medical evidence to support a work-related injury. The claimant does not appear to challenge the medical opinions of Drs. Hickson, McClung and Clifford that the claimant suffered from laryngeal papilloma. In any event, there is a bountiful supply of evidence supporting that conclusion. Exhibit I at 123, Exhibit D; McClung Depo. at 12. In our opinion, there is substantial evidence supporting the ALJ’s conclusion that there existed a non-industrial explanation of the claimant’s condition.
The claimant essentially bases his case on his own testimony that there was dust in the work place and medical records from St. Mary Corwin that noted the claimant worked around cement and raised the possibility of asthma. We are not persuaded that the ALJ was compelled to conclude from this that the claimant suffered from an occupational disease which lead to acute respiratory failure following exposure to dust at the work place.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his lung condition arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S.; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). The question of whether the claimant met the burden of proof is one of fact
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for determination by the ALJ . Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988).
In our view there was abundant evidence supporting the ALJ’s determination that the claimant had failed to meet his burden of proof in establishing a compensable work-related injury. The ALJ’s determination is supported by the opinions of Drs. Clifford, Hickson and McClung. Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8). Therefore, we perceive no reason to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 19, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John/D. Baird
____________________________________ Thomas Schrant
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CHRISTOPHER EVANS, PUEBLO, CO, (Claimant).
ENCON UNITED COMPANY, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
STEVEN U. MULLENS, PC, Attn: RICHARD M LAMPHERE, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: LISA SIMONS, ESQ., DENVER, CO, (For Respondents).