ORDER OF REMAND
In these consolidated workers' compensation cases, the respondents seek review of a final order of Administrative Law Judge Felter (ALJ) which awarded temporary total disability and medical benefits arising out of an "exposure and injury of March 11, 1998." The respondents contend the evidence does not support the ALJ's conclusion that the claimant sustained an occupational disease because of "constant use of her voice at work." Because we conclude the respondents were not given adequate notice of this issue, we remand the matter for further proceedings and entry of a new order
The claimant filed three separate claims for benefits alleging that she sustained injuries on February 19, 1996, October 1, 1997, and March 11, 1998. These claims were consolidated for hearing. At the commencement of the hearing on April 24, 1999, the claimant submitted a "Position Statement" outlining her theory of the case. The Position Statement alleges that the claimant "suffered workplace injuries that arose directly in connection with exposures to irritants and displayed acute symptoms." (Claimant's Position Statement, p. 3). The Position Statement further indicates that after each exposure the claimant suffered various respiratory symptoms including difficulties with her voice. Following the March 1998 exposure, the claimant alleged that she became aphonic (unable to speak)
At the hearing, the claimant testified that on each of the three occasions she suffered "allergic reactions" to unidentified respiratory irritants. She indicated the first reaction occurred when an air conditioner was turned on in her office. The October 1997 incident occurred when she was in an auditorium and the heat was turned on. Although the claimant could not identify a specific source for the symptoms in March 1998, she was again in the auditorium when she experienced the respiratory symptoms (Tr. pp. 11, 13, 19-20, 23)
The respondents presented expert medical opinion that the claimant's respiratory symptoms were not the result of any exposure to irritants in the workplace, and most probably the result of preexisting respiratory disease. The claimant offered the reports of Dr. Rhew, dated October 31, 1997, and March 25, 1998. In the October 31 report, Dr. Rhew noted the claimant "uses her voice extensively in her job for face-to-face conversations, on the phone, or lecturing." In the March 25 report, Dr. Rhew diagnosed severe dysphonia "probably perpetuated by excessive tension in speaking" while the claimant was using an "inflamed and edematous larynx" after her "environmental exposures."
Concerning the alleged injury of February 19, 1996, the ALJ found the claimant failed to prove any causal connection between her symptoms and the alleged "work-related exposure to contaminants." However, the ALJ did find the claimant sustained an exposure to irritants on October 1, 1997, when the "heating vents were turned on." The ALJ awarded the claimant benefits for medical expenses she incurred on October 1 and October 2, 1997 Thereafter, the ALJ found the claimant "returned to her underlying hypersensitivity and propensity to experience coughing, hoarseness and dyspnea."
The ALJ next found that on March 11, 1998, the claimant again experienced respiratory symptoms, and was hospitalized with dysphonia and laryngotracheitis. Relying on the reports of Dr Rhew, the ALJ concluded that the claimant's "symptoms of March 11" were caused by the claimant's "constant use of her voice at work." Thus, the ALJ awarded medical benefits and temporary total disability benefits from March 12, 1998, through April 6, 1998, as a result of the claimant's "compensable exposure and injury to her voice of March 11, 1998."
On review, the respondents describe the issue as whether or not there is sufficient evidence to support the ALJ's finding that the claimant's symptoms after March 11, 1998, are the result of the claimant's constant use of her voice at work. However, in the respondents' discussion of this issue, they contend the claimant never argued that her symptoms were related to overuse of her voice. Instead, the respondents point to the claimant's testimony that her symptoms were the product of "allergic reactions" resulting from exposures to irritants
Although not clearly stated, we understand the respondents to argue, at least in part, that they did not receive adequate notice the claimant was alleging the existence of an occupational disease caused by overusing her voice and that the ALJ would consider the issue of occupational disease in determining the compensability of the March 11 claim. Because we conclude the respondents were not afforded adequate notice to protect their due process rights, we remand for entry of a new order
Due process guarantees that where determination of an administrative adjudication turns on issues of fact, the parties must be afforded a reasonable opportunity to present evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). It is true that issues not specifically identified by the pleadings may be tried by consent. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). However, reasonable doubts concerning whether or not an issue was tried by consent should be resolved against the inference that a party implicitly agreed to try an issue. See Bill Dreiling Motor Co. v. Schultz, 168 Colo. 59, 450 P.2d 70 (1969). Further, parties may not advocate one position before the ALJ and assert a new position on appeal. See Shlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993)
Significantly, claims based on an occupational disease involve unique elements of proof, and are subject to defenses not applicable in cases where the claimant is asserting an accidental injury. § 8-40-201(14), C.R.S. 1999; Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993). Accidental injuries are traceable to a particular time, place and cause, while occupational diseases result from the claimant's exposure to hazardous conditions of employment over a period of time. Campbell v. IBM Corp 867 P.2d 77 (Colo.App. 1993). If the claimant is asserting the existence of an occupational disease, the claimant must prove that the hazards of the disease are more prevalent in the workplace then in everyday life or other occupations. Anderson v. Brinkhoff, supra If the claimant succeeds in establishing a causal connection between the hazards of employment and the disease, and the evidence shows the disease has "dual or concurrent causes," the respondents may seek apportionment based on the extent to which nonindustrial factors have contributed to the disability. Anderson v. Brinkhoff, supra; Cowin Co. v. Medina, 860 P.2d 535 (Colo App. 1992)
Here, the record fails to demonstrate that the respondents received adequate notice that the ALJ would consider the question of whether the claimant suffered compensable disability or need for medical treatment due to the use of her voice, which amounted to an occupational disease. The claimant's position statement does not indicate the claimant was advocating the existence of an occupational disease. To the contrary, the position statement demonstrates the claimant was asserting the occurrence of three separate accidental injuries traceable to identifiable times, places, and causes (exposures to irritants). Although the claimant introduced Dr. Rhew's reports, which could be interpreted as documenting an occupational disease, these reports also tend to support the existence of accidental injuries caused by irritants, and provide evidence of the claimant's disability stemming from dysphonia. Consequently, we cannot interpret the respondents' failure to object to these reports as indicating implicit agreement to try the issue of occupational disease stemming from overuse of the claimant's voice. Indeed, the respondents' strategy at the hearings, as evidenced by the questioning of their expert, indicates the respondents were attempting to rebut the existence of specific accidental injuries, and did not address the issue of whether the claimant overused her voice so as to aggravate her preexisting respiratory condition
Under these circumstances, the matter must be remanded to the ALJ for an additional hearing. At the hearing, the respondents should be afforded an opportunity to present evidence and argument in opposition to the claimant's evidence tending to establish an occupational disease. Of course, the claimant should be afforded the opportunity for surrebuttal if appropriate
We reject the respondents' assertion that the evidence is insufficient as a matter of law to establish the claimant sustained an occupational disease. The hazardous conditions of employment need not be the sole cause of an occupational disease or aggravation. To the contrary, a compensable occupational disease may result if the hazardous conditions of employment "cause, intensify, or aggravate — to some reasonable degree — the disability for which compensation is sought." Anderson v Brinkhoff, 859 P.2d at 824. If the claimant establishes that the hazards of the employment directly and proximately caused or contributed to the disease, the claimant does not have the burden of eliminating the existence of non-industrial factors, or proving the relative contributions of non-industrial factors. See Cowin Co. v. Medina, supra
The respondents' assertions notwithstanding, the reports of Dr. Rhew could support an inference that the claimant sustained a compensable occupational disease which aggravated her preexisting respiratory problems. Dr. Rhew's October 31, 1997, report documents the claimant's extensive use of her voice in her employment, and indicates the claimant developed the "inappropriate mechanism" of using excessive tension in the laryngeal muscles as a method of protecting her inflamed vocal folds. In the March 25, 1998, report, Dr. Rhews expressly restricts the claimant from "excessive talking," and states that "routine lecturing should be considered excessive use for this patient." Thus, the ALJ could plausibly infer the claimant's employment duties required the use of her vocal chords more than would be expected in other employment or activities of daily living, and that this excessive use aggravated the claimant's preexisting disease process so as to produce disabling dysphonia
In reaching this result, we should not be understood as expressing any opinion concerning the weight of the evidence, or the inferences to be drawn therefrom. Resolution of these issues is a matter for the ALJ after the respondents have been afforded an opportunity to present evidence in opposition to the claim for an occupational disease
IT IS THEREFORE ORDERED that the ALJ's order dated July 29, 1999, is set aside insofar as it determined the claimant sustained a compensable injury or disease on March 11, 1998. The matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
Copies of this decision were mailed April 4, 2000 to the following parties:
Joanne Kresl, 2421 Mathews St., Ft. Collins, CO 80525
Yvonne Chudd, Poudre Valley Health Care, Inc., 1024 S. Lemay Ave., Ft. Collins, CO 80524-3998
Denise Groves, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
William F. Garcia, Esq. and Rebecca A. Koppes Conway, Esq., 912 8th Ave., Greeley, CO 80631 (For Claimant)
Anne Smith Myers, Esq., and Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210
(For Respondents)
BY: A. Pendroy