IN THE MATTER OF THE CLAIM OF ROBERT ABNEY, Claimant, v. CHERRY CREEK SCHOOL DISTRICT, Employer, and JOINT SCHOOL DISTRICT FOR WORKERS’ COMPENSATION, Insurer, Respondents.

W.C. No. 4-468-592Industrial Claim Appeals Office.
July 24, 2002

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied and dismissed the claim for benefits based on an occupational disease. We affirm.

The claimant alleged the duties of his employment as a school bus driver required him to turn his head back and forth. According to the claimant’s theory of the case, the turning of his head aggravated a preexisting cervical condition and resulted in a compensable occupational disease. However, resolving conflicts in the medical evidence, the ALJ found the claimant’s condition was probably the result of a preexisting condition which is unrelated to and not aggravated by the duties of employment. Consequently, the ALJ denied the claim.

The claimant filed a petition to review which contains only general allegations of error. No brief was filed in support of the petition. Further, the claimant failed to procure a transcript of the hearing. Although the claimant states in a letter that he could not afford a transcript, there is no evidence the claimant applied to the Director of the Division of Workers’ Compensation to receive a free transcript under the provisions of § 8-43-213(3), C.R.S. 2001. Under these circumstances, the effectiveness of our review is limited.

The question of whether the claimant proved an occupational disease directly and proximately caused by the conditions of his employment was one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office 989 P.2d 251 (Colo.App. 1999). Because the claimant failed to procure a transcript, we must presume the ALJ’s pertinent findings of fact, including those concerning the testimony of Dr. Lesnak, are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Consequently, there is no basis for us to interfere with the ALJ’s order.

IT IS THEREFORE ORDERED that the ALJ’s order dated July 31, 2001, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

___________________________________ David Cain
___________________________________ Dona Halsey

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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed July 24, 2002 to the following parties:

Robert Abney, P. O. Box 201194, Denver, CO 80220-7194

Cherry Creek School District, 4850 S. Yosemite St., Englewood, CO 80111-1308

Joint School District for Workers’ Compensation, 1655 Lafayette St., #200,

Denver, CO 80218

Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)

Anne Smith Myers, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)

By: A. Hurtado