Rockwell Intern. v. Turnbull
| Decision Date | 08 November 1990 |
| Docket Number | No. 89CA2053,89CA2053 |
| Citation | 802 P.2d 1182 |
| Parties | ROCKWELL INTERNATIONAL and The Travelers Insurance Company, Petitioners, v. Robert E. TURNBULL, Director, Department of Labor and Employment, Division of Labor, State of Colorado, and The Industrial Claim Appeals Office of the State of Colorado, Respondents. . I |
| Court | Colorado Court of Appeals |
Blackman & Levine, Lawrence D. Blackman, Barbara S. Henk, Denver, for petitioners.
Marvin Firestone, M.D. J.D. & Associates, P.C., Marvin Firestone, Boulder, for respondent Robert E. Turnbull.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Carolyn A. Boyd, Asst. Atty. Gen., Denver, for respondents Industrial Claim Appeals Office and Director, Department of Labor and Employment.
Opinion by Judge PLANK.
The petitioners, Rockwell International and Travelers Insurance Company, seek review of an order of the Industrial Claim Appeals Office (Panel) which determined that claimant, Robert E. Turnbull, sustained a compensable occupational disease as a result of toxic chemical exposure during the course of his employment. We affirm.
The petitioners argue that there is no competent evidence showing a causal connection between claimant's occupational exposure to toxic chemical substances and the development of his disease, degenerative dementia. We disagree.
The claimant was not required to prove causation with mathematical certainty or beyond a reasonable doubt; rather, it was sufficient that he present facts and circumstances indicating to a reasonable probability that his disease was proximately caused by the conditions of his employment. See Climax Molybdenum Co. v. Industrial Commission, 146 Colo. 558, 362 P.2d 565 (1961).
Expert testimony is neither necessary nor conclusive in determining causation. Savio House v. Dennis, 665 P.2d 141 (Colo.App.1983); see also Krumback v. Dow Chemical Co., 676 P.2d 1215 (Colo.App.1983) (). However, if, as here, expert testimony is presented, the weight to be accorded to the testimony is a matter exclusively within the discretion of the Administrative Law Judge (ALJ) as fact-finder. See Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App.1985).
The ALJ found that claimant was unable to determine accurately the chemical substances to which he had been exposed, or the extent of his exposure, in part, because the employer failed to provide information on industrial hygiene monitoring pertinent to his claim. In addition, by the employer's own admission, an investigation was never undertaken to determine whether the bacterial contamination of a metal coolant produced toxic by-products which could have caused the claimant's condition.
Nevertheless, based on the testimony of claimant and numerous co-workers, including management level personnel, together with the medical reports of five physicians, various scientific articles, and the results of several neurological examinations performed by neurologists, psychiatrists, and clinical psychologists, the ALJ concluded that claimant's illness was caused by his exposure to a chemical solvent, 1,1,1-trichloroethane, "and other toxic chemical agents" in the claimant's work environment. The ALJ concluded that: "The weight of evidence from [scientific] journal articles, opinions of ... physicians, claimant's history, and expert opinions, is that there is no demonstrable other cause for claimant's syndrome aside from exposure during his employment for a number of years at Rocky Flats."
Having reviewed the record, we are satisfied that the evidence as a whole supports the ALJ's determination and establishes to a reasonable probability that claimant has sustained an occupational disease within the meaning of § 8-40-201(14), C.R.S. (1990 Cum.Supp.). See IML Freight, Inc. v. Industrial Commission, 676 P.2d 1205 (Colo.App.1983).
We specifically reject the petitioners' contention that the testimony of claimant's expert, Dr. Aldrich, has no evidentiary efficacy. Petitioners argue that Dr. Aldrich's testimony should be disregarded because he did not personally examine the claimant and because the record does not support his assumption that claimant was exposed to harmful quantities of chemical substances. We disagree.
An expert witness may properly base his opinion upon information and data compiled by others and presented to the expert "at or before the hearing." CRE 703; see People v. District Court, 647 P.2d 1206 (Colo.1982).
While Dr. Aldrich did not personally examine the claimant, he testified that he spent "considerable time" interviewing him, and that he reviewed medical records, reports, and correspondence, together with the depositions of claimant's treating and...
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