W.C. No. 4-549-131.Industrial Claim Appeals Office.
January 27, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ), which determined the claimant failed to prove a compensable right shoulder injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged a right shoulder injury at 9:00 a.m. on July 8, 2002, while employed as a laborer. There were no witnesses to the accident.
On conflicting evidence, the ALJ found the claimant failed to prove by a preponderance of evidence that the right shoulder injury arose out of and within the course of the employment with the respondent-employer. Crediting the testimony of the employer’s witnesses and rejecting the contrary testimony of the claimant, the ALJ found the claimant was not assigned to the work he stated he was performing at the time of the alleged injury. The ALJ also noted the claimant’s testimony that the injury was caused by a specific trauma but the claimant did not report any specific trauma to his treating physician or the employer until after he was laid off due to a work-force reduction. Indeed, the ALJ found the claimant denied his condition was work-related when confronted by his supervisor on July 10.
On review, the claimant asserts general allegations of error See § 8-43-301(8), C.R.S. 2003. However, the claimant has not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Section 8-43-301(8) 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 was required to prove that his condition was proximately caused an injury arising “out of and in the course of” his employment. Section 8-41-301(1)(c), C.R.S. 2003; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The question of whether the claimant has met his burden of proof is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. 2003. 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).
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).
The claimant has not provided a transcript of the hearings. See
§ 8-43-301(2), C.R.S. 2003 (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.”); Rule of Procedure VII (C)(2), 7 Code Colo. Reg. 1101-3 at 10, (when arrangements to pay for a transcript have not been made with a court reporter on a timely basis, an ALJ may determine the transcript has been withdrawn). 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).
Moreover, the ALJ’s factual determinations support the conclusion the claimant failed to prove an entitlement to workers’ compensation benefits. Therefore, the ALJ did not err in dismissing the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 22, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addressesshown below on January 27, 2004 by A. Hurtado.
Juan F. Soto, 4991 W. Hurst Pl., Denver, CO 80204
M. A. Mortenson Company, 4002 Nelson Rd., Longmont, CO 80503
Argonaut Insurance Company, 7272 E. Indian School Rd., #209, Scottsdale, AZ 85251-3970
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)