Rockwell Intern. v. Turnbull

Decision Date08 November 1990
Docket NumberNo. 89CA2053,89CA2053
Citation802 P.2d 1182
PartiesROCKWELL 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
CourtColorado 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.

I.

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) (expert evidence no longer required in occupational disease cases). 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...

To continue reading

Request your trial
30 cases
  • Hutchison v. Indus. Claim Appeals Office of Colo.
    • United States
    • Colorado Court of Appeals
    • June 1, 2017
    ...the experts' testimony in this case "is a matter exclusively within the discretion of the [ALJ] as fact-finder." Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo.App.1990). "Further, we may not interfere with the ALJ's credibility determinations except in the extreme circumstance where......
  • Leprino Foods Co. v. Factory Mut. Ins. Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 27, 2011
    ...933 F.2d 1519, 1522 (10th Cir.1991), and a series of intermediate Colorado Court of Appeals cases, see e.g., Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo.App.1990), that hold expert testimony is neither necessary nor conclusive in determining causation. Leprino further contends tha......
  • Meza v. Indus. Claim Appeals Office of State
    • United States
    • Colorado Court of Appeals
    • May 9, 2013
    ...and resolution of conflicts in the evidence and may not substitute its judgment for that of the ALJ); Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo.App.1990) (“[I]f, as here, expert testimony is presented, the weight to be accorded to the testimony is a matter exclusively within the......
  • City of Littleton v. Indus. Claim Appeals Office
    • United States
    • Colorado Supreme Court
    • May 2, 2016
    ...640 (Colo.App.2001). The ALJ has discretion to determine the weight to be accorded an expert medical opinion. Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo.App.1990). The ALJ is the sole arbiter of conflicting medical evidence, and the ALJ's factual findings are binding on appeal if......
  • Request a trial to view additional results
6 books & journal articles
  • Chapter 7 - § 7.2 FOUNDATION FOR ADMISSIBILITY
    • United States
    • Colorado Bar Association Colorado Courtroom Handbook for Civil Trials (2022 ed.) (CBA) Chapter 7 Expert Witnesses
    • Invalid date
    ...render his or her opinion concerning the result of the claimant's occupational exposure to toxic chemicals. Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1184 (Colo. App. 1990). ➢ Sufficient Foundation for Physician Expert. A physician testifying as to a diagnosis of mesothelioma and causation......
  • Chapter 7 - § 7.2 • FOUNDATION FOR ADMISSIBILITY
    • United States
    • Colorado Bar Association Colorado Courtroom Handbook for Civil Trials (CBA) Chapter 7 Expert Witnesses
    • Invalid date
    ...render his or her opinion concerning the result of the claimant's occupational exposure to toxic chemicals. Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1184 (Colo. App. 1990). ➢ Sufficient Foundation for Physician Expert. A physician testifying as to a diagnosis of mesothelioma and causation......
  • Chapter 5 - § 5.1 • NEGLIGENCE
    • United States
    • Colorado Bar Association Residential Construction Law in Colorado (CBA) Chapter 5 Tort Claims Arising From the Construction and Sale of a Home
    • Invalid date
    ...of contamination sufficient to sustain jury's determination that damaged products caused contamination); Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) (claimant not required to prove causation with mathematical certainty or beyond reasonable doubt; rather, sufficient for......
  • Chapter 14 - § 14.5 • TORT CLAIMS ARISING FROM THE CONSTRUCTION AND SALE OF A HOME
    • United States
    • Colorado Bar Association Practitioner's Guide to Colorado Construction Law (CBA) Chapter 14 Residential Construction
    • Invalid date
    ...of contamination sufficient to sustain jury's determination that damaged products caused contamination); Rockwell Int'l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990) (claimant not required to prove causation with mathematical certainty or beyond reasonable doubt; rather, sufficient for......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT