W.C. No. 4-393-352Industrial Claim Appeals Office.
May 9, 2001
FINAL ORDER
The pro se claimant seeks review of an order of former Administrative Law Judge Hopf (ALJ) which denied and dismissed her claim for mental impairment under § 8-41-301(2)(a), C.R.S. 2000. We affirm.
Section 8-41-301(2)(a) provides: “A claim of mental impairment must be proven by evidence supported by the testimony of a licensed physician or psychologist.” The statute defines “mental impairment” as a recognized, permanent disability arising from a “psychologically traumatic event that is generally outside of a worker’s usual experience and would evoke significant symptoms of distress in a worker in similar circumstances.” However, “mental impairment shall not be considered to arise out of and in the course of employment if it results from a disciplinary action, work evaluation, . . . or similar action taken in good faith by the employer.” Further, the mental impairment claim “cannot be based in whole, or in part, upon facts and circumstances that are common to all fields of employment.”
Here, the claimant alleged mental impairment from her employment as a benefits clerk. A hearing was held on August 12, 1999. At the conclusion of the claimant’s presentation of evidence, the respondent moved to dismiss the claim based on the claimant’s failure to present “live testimony” from a licensed physician or psychologist. In an order dated September 9, 1999, former ALJ Gandy granted the motion and dismissed the claim. The claimant then appealed that order.
In Esser v. Industrial Claim Appeals Office, 9 P.3d 1218 (Colo.App. 2000), cert. granted August 21, 200 , the Court of Appeals held that § 8-41-301(2)(a) was unconstitutional because it violates equal protection of the law insofar as it requires a claim of mental impairment to be proven by live expert testimony. Therefore, we set aside the order of ALJ Gandy and remanded the matter for further evidentiary proceedings without requiring the presentation of live testimony from a physician or psychologist.
On remand, the matter was assigned to ALJ Hopf due to the retirement of ALJ Gandy, and a new hearing was set. Based upon the evidence presented at the hearing on May 9, 2000, the ALJ found the claimant failed to prove that the performance evaluations, disciplinary actions, and the employer’s action in response to the claimant’s written grievances were not taken in good faith. The ALJ also found that at least part of the mental impairment claim was based upon circumstances common to all fields of employment. Consequently, the ALJ determined the claimant failed to sustain her burden to prove compensable mental impairment and dismissed the claim. The claimant timely filed a petition to review.
On this appeal, the claimant contends the ALJ’s findings are “biased” and that the ALJ erred in relying on the testimony of the respondent’s witnesses. Further, the claimant contends the ALJ failed to consider “sufficient and credible” evidence to the contrary in her testimony and the testimony of Ruth Roberts. Moreover, the claimant argues the record contains evidence of other harassment by the employer which was not mentioned in the ALJ’s order. We conclude the claimant has failed to establish any grounds for disturbing the decision.
Where the record contains conflicting evidence, it is the province of the ALJ, as the trier of fact, to resolve the conflicts. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141
(Colo.App. 1998). In so doing, the ALJ is not required to make findings addressing evidence which she did not find persuasive or determinative General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118
(Colo.App. 1994).
Furthermore, we may not interfere with the ALJ’s credibility determinations unless the testimony she credited is directly contradicted by such “hard, certain evidence” that we could say the ALJ erred as a matter of law in believing it. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); see also In re Marriage of Eisenhuth, 976 P.2d 896 (Colo.App. 1999) (presence of conflicting and sometimes inconsistent testimony does not compel finding that testimony is incredible as a matter of law); West v. Aranda, Colo. App. No. 92CA1576, July 1, 1993 (not selected for publication) (inconsistent and contradictory testimony are not uncommon to the adversary process).
The claimant has not provided a transcript of the May 9 hearing. Under these circumstances, we must presume the ALJ’s findings are supported by substantial evidence, and that the testimony the ALJ found credible and persuasive was not overwhelmingly rebutted. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Consequently, we cannot say the ALJ erred insofar as she resolved the evidentiary conflicts in favor of the respondent.
Similarly, in the absence of a transcript we must presume there is substantial evidence in the record to support the ALJ’s findings that the claimant failed to fulfill the statutory requirements for a claim of compensable mental impairment. Nova v. Industrial Claim Appeals Office, supra. Moreover, the findings support the order denying the claim for workers’ compensation benefits. Trujillo v. Industrial Claim Appeals Office, 957 P.2d 1052 (Colo.App. 1998); White Star Linen v. Industrial Claim Appeals Office, 787 P.2d 189 (Colo.App. 1989).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 29, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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. 2000. 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 decision were mailed May 9, 2001 to the following parties:
Dorothy Barrett-Taylor, 7536 E. Warren Dr., Apt. 15-30, Denver, CO 80231
Dorothy Barrett-Taylor, P. O. Box 370654, Denver, CO 80237-0654
Kaiser Permanente, 7335 E. Orchard Rd., #200, Englewood, CO 80111-2512
Kaiser Foundation Health Plan/RSKCo, P. O. Box 5307, Denver, CO 80217-5307
Fred Ritsema, Esq., 999 18th St., #1300, Denver, CO 80202 (For Respondent)
BY: A. Pendroy