W.C. No. 4-729-116.Industrial Claim Appeals Office.
February 25, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated October 28, 2008 that denied and dismissed the claim for benefits under the Workers’ Compensation Act of Colorado. We affirm.
The claimant contends that he injured his left knee while working for the employer sometime in May 2007. The ALJ found that the claimant’s version of events was not credible. The ALJ found that claimant’s supervisor and foreman were credible witnesses and determined that their testimony carried greater weight. The ALJ determined that the claimant had failed to establish by a preponderance of the evidence that he sustained an injury to his left knee arising out of and in the course of his employment.
On appeal the claimant asserts that the ALJ’s findings are wrong because he did in fact get hurt on the job and had informed both his supervisor and his foreman of the injury. We first note that there are attachments to the claimant’s petition to review. These attachments are signed statements from individuals essentially attesting that the claimant was injured on the job. However, parties are expected to submit their evidence at the time of the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). The claimant’s representations and attachments to his brief may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Therefore, we may not consider the additional material submitted by the claimant.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his left knee injury arose out of and in the course of his
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employment. Section 8-43-301(1)(c), C.R.S. 2008; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. In resolving this issue the ALJ was not required to cite disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). To the contrary, the ALJ is only required to enter findings on the evidence he found dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000).
On review the issue is whether the ALJ’s findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard we are required to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Further, we particularly note that credibility was an important issue in this case and we may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
The claimant has not provided a transcript of the hearings held on August 29, 2008 and September 17, 2008. See § 8-43-301(2), C.R.S. 2008 (petitioner shall, at the time of the filing of the petition to review, order any transcript relied upon for the petition to review, arrange with the hearing reporter to pay for the same and notify opposing parties of the transcript ordered); Bohan v. Direct Connection Executive Courier Service, Inc., W.C. No. 4-355-119 (October 22, 1998), aff’d. on other grounds, Direct Connection Executive Courier Service, Inc., v. Industrial Claim Appeals Office, (Colo.App. No. 98CA2159, May 27, 1999) (not selected for publication). Under these circumstances we are required to presume the ALJ’s findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
The ALJ made the following pertinent findings of fact. The claimant’s reports of his date of injury vary and are not consistent. After his claimed injury sometime in May
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2007 the claimant continued to work into June 2007. The claimant did not inform his supervisor that he injured his knee at any time in May 2007 and had he done so his supervisor would have sent him for medical treatment. The claimant did not inform his foreman that he hurt his knee while working. The claimant was ordered to go to Denver with a crew on or about June 8, 2007 to assist at a job site. The claimant refused to go indicating he had problems with transportation. A condition of employment at the time of hire was that the claimant had to be willing to travel to other job sites. As a result of the claimant’s refusal to go to Denver his employment was terminated. It was after the claimant’s termination that he informed the employer that he had injured his left knee on the job.
Moreover, beyond the findings noted above, which we must presume are supported by substantial evidence, we also note that the ALJ’s conclusion is supported by medical reports by Dr. Arnold who examined the claimant in April 2008. Dr. Arnold opined that the claimant’s left knee tear was old and that is was unlikely that the claimant suffered an acute work-related injury to his left knee or work-related aggravation of an injury to the left knee. Exhibit D. The ALJ found that Dr. Arnold was credible.
The ALJ’s findings of fact are supported by substantial evidence in the record. The findings are also sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. The ALJ also correctly applied the law. Therefore, the claimant has failed to establish any basis on which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued October 28, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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PETE ATENCIO, ROMERO, CO, (Claimant).
PARKER EXCAVATING, INC., STOCKYARD ROAD, PUEBLO, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., E LOWRY BLVD, DENVER, CO, (Insurer).
HEUSER HEUSER, LLP, Attn: GORDON J HEUSER, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: LISA SIMONS, ESQ., DENVER, CO, (For Respondents).
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