IN THE MATTER OF THE CLAIM OF ANTHONY ABILA, Claimant, v. CENTER COPY, Employer, and TRUCK INSURANCE EXCHANGE, Insurer, Respondent.

W.C. No. 4-452-021Industrial Claim Appeals Office.
March 14, 2001

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Corchado (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.

In support of his order, the ALJ made the following factual determinations. The claimant fractured his left arm in 1996, while working for another employer. In November 1997, the claimant underwent a left carpal tunnel release. That fall the claimant also suffered a spiral fracture of his left distal ulnar shaft. In March 1998, the claimant had further surgery on his left arm. The claimant reached maximum medical improvement in July 1998, but his left arm was in a weakened condition and he continued to experience left arm pain. In August 1998, the claimant injured his right arm overusing it compensate for the weakened left arm. At the time of the injury the claimant was performing strenuous work activities for another employer. By January 1999, the claimant was also experiencing neck pain. In March 1999, the claimant began working for the respondent-employer performing “light duties.” The ALJ further determined that none of the claimant’s job duties placed sufficient stress on the claimant’s upper extremities or neck to cause injury or aggravate the previous injuries. Instead, the ALJ determined the claimant’s neck problems were the result of a natural degeneration of his cervical spine and his preexisting upper extremity problems. Consequently, the ALJ denied the claim for workers’ compensation benefits.

The claimant appealed the ALJ’s order and alleged the ALJ’s findings are contrary to the weight of the evidence and applicable law. A notice of briefing schedule was issued December 8, 2000, but no supporting brief was filed. The matter was subsequently transmitted to us for review.

On February 28, 2000, we issued an acknowledgment letter, which advised the claimant that the record transmitted on review does not contain a brief in support of the petition to review and directed the claimant to submit a copy of any timely filed brief. We have not received a response to our acknowledgment letter.

The question of whether the claimant has proven a compensable injury is one of fact for resolution by the ALJ, and the ALJ’s findings must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). “Substantial evidence” is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).

In determining whether the ALJ’s findings of fact are supported by the evidence, we must defer to the ALJ’s credibility determinations, and the probative weight he afforded the evidence which he found persuasive. ee Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, insofar as the evidence is subject to conflicting inferences, we cannot disturb plausible inferences drawn by the ALJ. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).

Upon review of the record, we conclude the ALJ’s findings of fact are supported by substantial medical evidence in the record and, therefore, must be upheld. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983). We may not reweigh the evidence on appeal or substitute our judgment for that of the ALJ concerning the sufficiency or probative weight of the evidence See City of Durango v. Dunagan, supra. Moreover, the findings support the denial of benefits. Section 8-41-301(1)(b), C.R.S. 2000; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).

IT IS THEREFORE ORDERED that the ALJ’s order dated September 28, 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 March 14, 2001 to the following parties:

Anthony Abila, 6360 N. Chase, Arvada, CO 80003

Center Copy, 333 W. Colfax Ave., #100, Denver, CO 80204

Truck Insurance Exchange, Mid Century Insurance Company, 7535 E. Hampden Ave., #300, Denver, CO 80231

Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)

BY: A. Pendroy