Faulkner v. ICAO, 99CA1136.

Decision Date11 May 2000
Docket NumberNo. 99CA1136.,99CA1136.
Citation12 P.3d 844
PartiesSherry FAULKNER, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF THE STATE OF COLORADO, Alexander Dawson School, and Truck Insurance Exchange, Respondents.
CourtColorado Court of Appeals

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 Respondents Alexander 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...

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21 cases
  • Sanchez v. Indus. Claim Appeals Office of Colo.
    • United States
    • Colorado Court of Appeals
    • May 18, 2017
    ...an injured employee must establish by a preponderance of the evidence before any compensation is awarded." Faulkner v. Indus. Claim Appeals Office , 12 P.3d 844, 846 (Colo. App. 2000). The issue of causation "is generally one of fact for determination by the ALJ." Id. ; see also H&H Warehou......
  • Leprino Foods v. Ind. Claim Appeals Office, No. 04CA1379.
    • United States
    • Colorado Court of Appeals
    • December 1, 2005
    ...Consequently, the DIME physician's opinion on this issue is not entitled to special or presumptive weight. Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844 (Colo.App.2000). Here, unlike the situation in Faulkner, supra, the existence of a compensable injury is not in question. Indeed, e......
  • Meza v. Indus. Claim Appeals Office of State
    • United States
    • Colorado Court of Appeals
    • May 9, 2013
    ...P.3d at 483 (DIME physician's opinion regarding threshold compensability carries no presumptive weight); Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo.App.2000) (because causation under section 8–41–301(1)(c), C.R.S.2012, was at issue rather than validity of DIME physician......
  • Kieckhafer v. Indus. Claim Appeals Office of State
    • United States
    • Colorado Court of Appeals
    • July 19, 2012
    ...sustained a compensable injury proximately caused by his or her employment. § 8–41–301(1)(c), C.R.S.2011; Faulkner v. Indus. Claim Appeals Office, 12 P.3d 844, 846 (Colo.App.2000) (“Proof of causation is a threshold requirement which an injured employee must establish by a preponderance of ......
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1 books & journal articles
  • Update on Colorado Appellate Decisions in Colorado Worker's Compensation Law
    • United States
    • Colorado Bar Association Colorado Lawyer No. 31-9, September 2002
    • Invalid date
    ...(April 2002) (Colo.App. No. 01CA0852, annc'd 2/28/02). 30. Id. at 192. 31. Id. 32. See, e.g., Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo.App. 2000) (DIME opinion concerning causation need not be overcome by clear and convincing evidence where dispute involved "thres......

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