Faulkner v. ICAO

• Decision Date: 11 May 2000
• Citation: Faulkner v. ICAO, 12 P.3d 844 (Colo. App. 2000)
• Docket Number: 99CA1136
• Parties: Sherry FAULKNER, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO, Alexander Dawson School, and Truck Insurance Exchange, Respondents.
• Court: Colorado Court of Appeals

12 P.3d 844

Sherry FAULKNER, Petitioner, v.The INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO, Alexander Dawson School, and Truck Insurance Exchange, Respondents.

No. 99CA1136.

Colorado Court of Appeals, Div. I.

May 11, 2000.

Rehearing Denied July 6, 2000.

Certiorari Denied October 23, 2000.

Law Offices of Rebecca A. Koppes Conway, Rebecca A. Koppes Conway, Greeley, Colorado, for Petitioner

No Appearance for The Industrial Claim Appeals Office of the State of Colorado

White & Steele, P.C., J. Barton Maxwell, Denver, Colorado, for RespondentsAlexander Dawson School and Truck Insurance Exchange

Opinion by Judge METZGER.

Sherry Faulkner(claimant) seeks review of the final order of the Industrial Claim Appeals Office(Panel) denying her claim against Alexander Dawson School and its insurer, Truck Insurance Exchange (collectively employer), for workers' compensation benefits.We affirm.

Claimant was working in her basement office cubicle when she was exposed to fumes emitted by carpet glue.She testified that, while a 20"x8' piece of carpet was being laid in an adjacent area, the fumes drifted into her office.She soon began to experience congestion, coughing, a headache, and the sensation of being "high."Later, she reported many symptoms including difficulty speaking, and underwent numerous treatments and examinations.Her treating physician assigned a 28% whole person impairment rating.

Employer filed several general admissions of liability for medical and temporary disability benefits.Claimant then applied for a hearing on the issues of causation and permanent disability.Three months later, employer filed a motion seeking to add the issue whether it should be allowed to withdraw its admissions of liability on the ground that two expert witnesses had opined that claimant's condition had not been caused by exposure to the fumes.A prehearing Administrative Law Judge (ALJ) issued an order adding this issue.

Between the time the hearing was requested and the time it was held, claimant underwent a division-sponsored independent medical examination (IME).Ultimately, the IME physician diagnosed claimant as having irritant vocal cord dysfunction, and assigned a 14% whole person impairment rating.However, the issue of the impairment rating in this IME opinion was not designated by either party as an issue to be considered at the hearing.

At the hearing, employer's experts expressed their opinions that claimant had not been exposed to sufficient quantities of harmful chemicals to have caused any tissue damage or physical injury.One of employer's experts attributed claimant's symptoms to a psychosomatic upper airways disease known as conversion hysteria.

Crediting the testimony of employer's experts, the ALJ found by a preponderance of the evidence that claimant had not been physically injured by exposure to the fumes.Instead, the ALJ found, claimant had experienced a "psychological reaction which resulted in numerous respiratory and other physical complaints."Thus, the ALJ concluded, this case involved a claim for mental impairment within the meaning of § 8-41-301(2)(a), C.R.S.1999; and, since claimant had failed to prove the elements necessary to award benefits under that statute, the ALJ denied claimant's claim for permanent disability benefits and additional medical benefits.

The ALJ also held that employer's admissions of liability were the result of a mistake concerning the compensability of the claim.Therefore, employer's request to withdraw the admissions and cease payment of benefits was granted.The Panel affirmed.

Claimant contends the ALJ applied an incorrect burden of proof in determining the issue of causation.She argues that the IME physician's opinion concerning the cause of her condition could not be overcome except by clear and convincing evidence.Thus, claimant argues, the ALJ erred in applying a preponderance of the evidence standard in finding that her symptoms had been caused by a psychological reaction rather than by exposure to fumes.We disagree.

Section 8-41-301(1)(c), C.R.S.1999, requires that a claimant's injury or death be proximately caused by an injury or occupational disease arising out of and in the course of the employee's employment.Proof of causation is a threshold requirement which an injured employee must establish by a preponderance of the evidence before any compensation is awarded.The question of causation is generally one of fact for determination by the ALJ.SeeSnyder v. Industrial Claim Appeals Office,942 P.2d 1337(Colo.App....