IN THE MATTER OF THE CLAIM OF CLINTON PIEL, Claimant, v. UNIVERSITY OF NORTHERN COLORADO, and Employer, PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-704-417.Industrial Claim Appeals Office.
January 28, 2009.

FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Friend (ALJ) issued November 6, 2008, that awarded certain permanent and temporary disability benefits subject to apportionment and an offset. We affirm.

The ALJ initially issued a summary order dated June 25, 2008 and the claimant made a request for specific findings of fact and conclusions of law. The ALJ issued Specific Findings of Fact, Conclusions of Law dated July 8, 2008, and both parties filed petitions to review. On November 6, 2008, the ALJ issued the Supplemental Order that is here under appeal.

The petition to review contains general allegations of error, derived from § 8-43-301(8), C.R.S. 2008 and in addition requests that the claimant be allowed to present his testimony in court. We first note that the claimant did testify at length during the June 13, 2008 hearing. Tr. at 13-57. Therefore, we perceive no due process denial of a right to present testimony. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). Under § 8-43-301(8) we are precluded from disturbing the ALJ’s order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law.

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As to the general allegations of error we note that the ALJ made extensive findings of fact with record support. The ALJ found that the claimant suffered an admitted work-related injury to his right knee on December 28, 1995 while employed by a former employer and as a result underwent medical treatment, including surgery. Tr. at 14. The claimant settled the 1995 claim in 2002. Tr. at 34. The claimant continued to have ongoing pain complaints, instability and symptoms in his right knee. Tr. at 24; Exhibit N, Exhibits R-W. The accident, which is the subject of the present claim, occurred on November 2, 2006 when the claimant injured his knee again when he almost dropped a tray of potatoes. Tr. at 6; Exhibit A at 1. The claimant underwent a total knee arthroplasty and in 2007 was placed at maximum medical improvement. Tr. at 17; Exhibit A at 12; Exhibit C at 16. Various physicians were retained by the parties to opine on the issues of causation and apportionment. The ALJ found the report and deposition testimony of Dr. Hemler to be credible and persuasive that 20 percent of the need for the surgery was attributable to the 2006 accident. Exhibit E. The ALJ found the opinion of Dr. Fillmore that the 2006 injury caused an impairment of 11 percent of the leg at the hip, to be credible and persuasive. Exhibit E. The ALJ limited the liability of the respondents here to 20 percent of the related medical costs. The ALJ awarded 11 percent of the leg at the hip for permanent partial disability and ordered the respondents to pay 20 percent of the temporary disability benefits for the hours the parties had stipulated the claimant missed from work.

Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Id.; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).

Here, we have reviewed the record and the ALJ’s findings of fact and conclusions of law. The ALJ’s findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his weighing of the evidence and his credibility determinations. Further, the ALJ’s findings are amply supported by substantial evidence in the record and the findings support the award of benefits made. We perceive no error in the ALJ’s application of the law, nor has the claimant directed us to any error. Accordingly, we perceive no basis on which to disturb the ALJ’s order.

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IT IS THEREFORE ORDERED that the ALJ’s supplemental order issued November 6, 2008 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________

John D. Baird

______________________________

Thomas Schrant

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CLINTON PIEL, GREELEY, CO, (Claimant).

UNIVERSITY OF NORTHERN COLORADO, Attn: CARTER HALL 2002, C/O: MS CHERYLE ENRIQUES, GREELEY, CO, (Employer).

PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ./LAURA HARRINGTON, DENVER, CO, (Insurer).

SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).

RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: ANDREW H RZEPIENNIK, ESQ., DENVER, CO, (For Respondents).

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