IN THE MATTER OF THE CLAIM OF JEREMY ENCISO, Claimant, v. C.F. MEIER COMPOSITES, INC., Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-764-288.Industrial Claim Appeals Office.
August 12, 2009.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated April 29, 2009, that denied the claim for temporary total disability (TTD) benefits. We affirm.

The claimant was injured at work on July 2, 2008. The claimant eventually returned to work and performed modified duties. On September 24, 2008, the claimant was terminated partly at his own request and also for continuous insubordination toward his supervisor. The ALJ found that the claimant had engaged in volitional conduct and was responsible for his termination. The claimant took a construction job with a different employer. On October 31, 2008, Dr. Soto imposed work restrictions against lifting over 20 pounds. The new employer terminated the claimant’s employment due to the restrictions. The ALJ determined that the imposition of the work restrictions did not indicate that the claimant probably suffered a worsening of condition after his termination of employment and the evidence did not indicate that any worsening, if it occurred, was due to the work injury rather than the intervening construction labor. Consequently the ALJ concluded that the claimant had failed to prove that his wage loss after October 31, 2008, was due to the work injury rather then due to his termination from employment.

I.
The claimant contends that the ALJ incorrectly assigned him the burden of proof regarding the issue of intervening cause. We are not persuaded that the ALJ committed reversible error.

Our review is truncated by the absence of a hearing transcript in the record. As a

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general matter, we must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988).

Here, the ALJ found that the claimant had not proven by a preponderance of the evidence that his condition worsened as a natural consequence of the admitted work injury. The ALJ found that the authorized treating physician (ATP) completed the workers’ compensation form, but did not comment on the causation of any worsening or analyze the construction work the claimant did after his employment with the employer here was terminated.

The claimant argues that under a doctrine established b Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004), he is entitled to temporary disability benefits because his condition got worse. In Anderson, the Colorado Supreme Court held that “section 8-42-105(4) bars TTD wage loss claims when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury incurred during that employment causes the wage loss.” Anderson, 102 P.3d at 326. Thus Anderson is limited to those situations in which a claimant’s industrial injury worsens after the termination of employment and prevents or diminishes the claimant’s ability to work. See Gilmore v. Industrial Claim Appeals Office 187 P.3d 1129 (Colo. App. 2008). Here, the ALJ found that the claimant had not proven by a preponderance of the evidence that he worsened after his termination from employment as a natural consequence of the admitted work injury.

Similarly, in Grisbaum v. Industrial Claim Appeals Office, 109 P.3d 1054 (Colo. App. 2005), the critical factor supporting the award of TTD benefits was held to be the claimant’s worsened condition, which restricted or prevented claimant’s ability to work for future employers, not whether that claimant had been offered modified employment prior to the termination of employment. Citin Anderson, the court in Grisbaum noted that “the termination statutes bar temporary disability wage loss claims only when the voluntary or for-cause termination of the modified employment causes the wage loss, but not when the worsening of a prior work-related injury incurred during that employment causes the wage loss.” Grisbaum, 109 P.3d at 1056.

Here, the ALJ found the claimant failed to prove that his wage loss after October 31, 2008 was due to the work injury rather than due to his termination from employment. The ATP imposed a 20-pound lifting restriction on the claimant on October 31, 2008. Exhibit I at 43. The ALJ noted that the ATP did not comment on the causation of any worsening and did not analyze the claimant’s construction work with the second

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employer. The ALJ concluded that the imposition of restrictions did not indicate that the claimant probably suffered a worsening of condition after his termination of employment. Further, the ALJ determined that the evidence did not indicate that any worsening, if it occurred, was due to the work injury rather than the intervening construction labor. The ALJ concluded that the claimant had failed to prove that his wage loss after October 31, 2008 was due to the work injury rather than due to his termination from employment.

Here, the claimant concedes for the purpose of this appeal that he was responsible for the termination of his employment. Consequently, the claimant had the burden to prove that a worsening of his prior work-related injury caused the wage loss for which he sought temporary disability benefits. It is typically true that the burden of proof rests upon the party asserting the affirmative of a proposition. Cowin Co. v. Medina 860 P.2d 535 (Colo. App. 1992). Therefore, consideration should be given to which party would prevail in the absence of any evidence upon the subject; the burden is normally placed upon the adverse party. Valley Tree Service v. Jimenez, 787 P.2d 658 (Colo. App. 1990). A claimant has the burden of proof in seeking to reopen a claim for a worsened condition. Richards v. Industrial Claim Appeals Office, 996 P.2d 756, 758 (Colo. App. 2000). Change of condition refers to a change in the condition of the original compensable injury or to a change in a claimant’s physical or mental condition that can be causally connected to the original compensable injury. Chavez v. Industrial Comm’n, 714 P.2d 1328, 1330 (Colo. App. 1985). As we read the ALJ’s order, he found that the claimant had not carried the burden of proof that a worsening of his prior work-related injury caused the wage loss for which he sought temporary disability benefits. Based on the authorities cited above we agree with the ALJ that the claimant had this burden and because of the lack of a transcript we presume the ALJ’s factual findings are supported by substantial evidence in the record.

II.
The claimant next contends that the ALJ erred in failing to find that his condition had worsened because after his ATP had released him to regular employment the ATP later again imposed restrictions. The claimant argues that if the ATP did not comment on causation of the worsening then it is presumed that she continued to treat the work-related injury. We disagree.

Section 8-43-201, C.R.S. 2009, provides that the “facts in a workers’ compensation case shall not be interpreted liberally in favor of either the rights of the injured worked or the rights of the employer.” There is no authority in support of the assertion that an ALJ is required to resolve doubts in favor of the claimant. That principle was disapproved by the court in City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Therefore, we see no reason to interfere with the ALJ’s order. We have reviewed the claimant’s additional arguments and they do not alter our conclusions.

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IT IS THEREFORE ORDERED that the ALJ’s order dated April 29, 2009 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D.Baird

____________________________________ Thomas Schrant

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JEREMY ENCISO, LAMAR, CO, (Claimant).

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

LAW OFFICES OF WILLIAM A ALEXANDER, JR., PC, Attn: WILLIAM A ALEXANDER, JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).

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

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