W.C. No. 4-595-889.Industrial Claim Appeals Office.
December 17, 2004.
CORRECTED FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant failed to prove she suffered an injury arising out of and in the course of employment and, therefore, denied and dismissed the claim for Workers’ Compensation Benefits. We affirm.
Based on inconsistencies between the claimant’s testimony and the testimony of the respondent’s lay witnesses and the medical evidence, the ALJ found the claimant failed to prove by a preponderance of evidence that she injured her neck during employment on September 25, 2002. In particular, the ALJ found the claimant did not report any work-related injury when examined by Dr. Pettine on September 27 and did not seek any medical treatment for the alleged injury between September 2002 and March 9, 2004. Further, the ALJ found the claimant did not report the alleged injury to the employer until November 8, 2003, when she filed a claim for workers’ compensation benefits. Therefore, the ALJ denied and dismissed the claim for workers’ compensation benefits.
On December 7, 2004, we affirmed the ALJ’s order, after erroneously stating that the claimant did not file a brief in support of her petition to review. Upon further examination of the record, we located the claimant’s brief dated September 20, 2004, and the “Claimant’s Submissions” similarly dated. Consequently, this corrected order is issued pursuant to § 8-43-302 C.R.S. 2004.
Our authority to review the ALJ’s order is provided set forth in §8-43-301(8), C.R.S. 2004, which precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The “arising out of” test is one of causation, and requires that the injury have its origin in an employee’s work-related functions and must occur while the claimant is “performing service” arising out of the employment. Section 8-41-301(1)(b), C.R.S. 2004.
The question of whether the claimant has met her burden of proof is one of fact for determination by the ALJ and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Under this standard, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000) Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant’s brief in support of the petition to review contains factual assertions concerning her job duties and the alleged injury on September 25. The claimant also offers an explanation for the fact that she did not report a specific injury when examined by Dr. Clemens. Further, the claimant contests the ALJ’s finding that she did not seek medical treatment between September 2002 and March 2004.
However, our review is limited to the record that was before the ALJ City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 (Colo.App. 1988). Consequently, we may not consider the claimant’s factual assertions on review. Neither may be we consider the “Claimant’s Submissions” dated September 20, 2004, which were not provided to the ALJ at the hearing on June 3, 2004. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158
(1935) (parties are expected to present all of their evidence at the appointed hearing).
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). Further, the ALJ’s findings are supported by substantial evidence and plausible inferences drawn from the record. Moreover, the ALJ’s finding support the order denying benefits. Consequently, the claimant has failed to establish grounds which afford us a basis for granting appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 6, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Kathy E. Dean
Joanne M. Young, Loveland, CO, George W. Lundeen, Loveland, CO, Legal Department, Pinnacol Assurance — Interagency Mail, T. Paul Krueger II, Esq., and Douglas L. Stratton, Esq., Ft. Collins, CO, (For the Respondents).