W.C. No. 4-781-078.Industrial Claim Appeals Office.
April 15, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated October 26, 2009, that denied and dismissed the claimant’s claim for compensation and benefits. We affirm.
The ALJ made the following pertinent findings of fact. The claimant worked for the employer as a house cleaner. On July 18, 2008 and August 15, 2008 the claimant worked at a house owned by Diana Struve. The claimant did not clean a cat litter box nor did she come into contact with cat feces while cleaning Ms. Struve’s home. On November 25, 2008 the claimant was seen by Dr. Tangel with a two-day history of left-sided flank pain. On November 26, 2008 the claimant underwent surgery by Dr. Mason for examination and biopsy of a lesion on the claimant’s thoracic spin. The pathology report noted that the findings were diagnostic of toxoplasmosis. Dr. Parvot noted that the claimant had a diagnosis of CNS toxoplasmosis that is caused by a parasite typically encountered in cat feces.
The ALJ found that the claimant failed to prove by a preponderance of the credible and persuasive evidence that she was exposed to cat feces containing the toxoplasmosis parasite while at work in the home of Ms. Struve. The ALJ further found that the claimant had failed to prove by a preponderance of the evidence that she sustained a compensable injury from contracting toxoplasmosis due to exposure to cats while cleaning the home of Ms. Struve.
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The claimant brings this appeal and requests that she be granted another hearing where she could present testimony from certain witnesses that her former lawyer did not present. The claimant has also attached a number of documents including some new medical reports. However, parties are expected to submit their evidence at the time of the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). The claimant’s representations and attachments to her brief may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987). Therefore, we may not consider the additional documents submitted by the claimant.
Nor may we under the circumstances grant the claimant a new hearing. Section-43-301(8) does not authorize us to consider the “adequacy” of representation provided by a party’s attorney. Accordingly, insofar as the claimant argues that her ability to have certain evidence introduced was the result of the ineffective assistance of counsel, we cannot alter the ALJ’s order on this basis. Creel v. Source One Management, W. C. No. 4-459-341 (November 19, 2002).
Under the Workers’ Compensation Act, an employee is entitled to compensation where the injury is proximately caused by an injury or occupational disease arising out of and in the course of the employee’s employment. Section 8-41-301(1), C.R.S. Horodyskyj v. Karanian 32 P.3d 470 (Colo. 2001). Here in order to prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that she contracted toxoplasmosis due to exposure to cats while cleaning the home of Struve. 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).
Proof by a preponderance of the evidence requires the proponent to establish that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. On review the issue is whether the ALJ’s findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717
P.2d 965 (Colo. App. 1985). Under this standard we are required to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
We acknowledge that the record contains a handwritten note signed by Dr. Tangel with a diagnosis of toxoplasmosis and a notation that this came from the claimant’s exposure to cats at work. However, the ALJ found that the opinions of Dr. Parvot and
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Dr. Tangel were not credible and persuasive to establish that the claimant was exposed to toxoplasmosis in the home of Struve or that the claimant’s medical condition was causally related to such exposure. In coming to these conclusions, the ALJ made the following findings of facts with record support.
Dr. Hayes, an expert in general veterinary medicine tested one of Ms. Struve’s cats for toxoplasmosis and the test was negative. Exhibit A at 2; Hayes Depo. at 10. Therefore this cat could not have passed on the toxoplasmosis oocyst to humans. Hayes Depo. at 12. Dr. Stein performed an independent veterinary medical review focused on a causation analysis of toxoplasmosis in the case. Exhibit B at 10. Dr. Stein testified that the claimant very likely did not contract CNS toxoplasmosis from exposure to cats at the home of Struve as claimed. Exhibit B at 13. Dr. Stein opined that it was much more likely and scientifically probable that the claimant contracted CNS toxoplasmosis from exposure to and ingestion of uncooked meats and/or vegetables that were not properly washed. Tr. at 125-126. The ALJ found the opinions expressed by Dr. Stein to be credible and persuasive.
Dr. Ramaswamy an expert in internal and occupational medicine testified that the major source of transmission of toxoplasmosis was through ingestion of raw or undercooked meat and through ingestion of vegetables, water or food that is contaminated with oocysts. Exhibit C at 28. Dr. Ramaswamy testified regarding the “cascade of events” that would have had to occur in order to presume transmission of toxoplasmosis from a cat to the claimant. Tr. at 97-100. Dr. Ramaswamy concluded that the odds of all of these events occurring would be highly improbable. Tr. at 100, 101. The ALJ found Dr. Ramaswamy’s opinions to be credible and persuasive.
In our view the opinions expressed by Dr. Hayes, Dr. Stein and Dr. Ramaswamy are substantial evidence supporting the ALJ’s determination. We have reviewed the record and the ALJ’s findings of fact. The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo. App. 1992). Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 26, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
SANDRA MATURIN, 12236 WELD COUNTY ROAD 1, LONGMONT, CO, (Claimant).
GENERAL SERVICES CORPORATION, C/O: PROFESSIONAL SNOW REMOVAL, BOULDER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: CHRISTOPHER W. CRABTREE, ESQ., DENVER, CO, (For Respondents).
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