W.C. No. 4-303-775Industrial Claim Appeals Office.
July 6, 1998
The claimant seeks review of an order of Administrative Law Judge Atencio (ALJ) which determined that the claimant did not sustain an injury arising out of and in the course of employment, and denied the request for temporary total disability benefits. We affirm.
The claimant worked for the employer as a custodian, and from time to time was required to operate a rug shampooing machine. The ALJ found that the claimant was required to clean the very dirty areas of the carpets by scrubbing them on her hands and knees. The claimant testified that as a result of these activities she injured her back and knees. However, the ALJ found that the claimant was separated from the employment due to “personal problems” between the claimant and her supervisor, and that the claimant did not inform the supervisor at that time that she had been injured. Further, the ALJ found that the claimant continued in other employment, umpiring at softball games. Consequently, the ALJ discredited the claimant’s testimony that she injured her back and knees while cleaning carpets.
The ALJ also found that the claimant was examined by Dr. Christopher B. Ryan for bilateral knee complaints. However, the ALJ found, Dr. Ryan imposed no activity restrictions, including work restrictions, based on these complaints.
Under these circumstances, the ALJ was not persuaded that the claimant sustained an industrial injury arising out of and in the course of her employment. Accordingly, the ALJ denied the claimant’s claim for temporary total disability benefits.
On appeal, the claimant argues, inter alia, that the ALJ erred in determining that the claimant did not sustain an industrial injury. We disagree.
Whether the claimant has suffered an industrial injury, and whether the injury is the cause of the claimant’s need for treatment, are questions of fact to be determined by the ALJ. See F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Further, we must uphold the ALJ’s findings if supported by substantial evidence in the record. See § 8-43-301(8), C.R.S. 1997; F. R. Orr Construction v. Rinta, supra. Moreover, it is the claimant’s burden to prove entitlement to benefits by a preponderance of evidence. See Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo. 1983).
Here, the ALJ found that when the claimant was separated from the employment, she made no statement to her supervisor concerning her alleged injuries. Further, the ALJ found that the claimant continued to officiate at softball games after the date of the alleged injuries. Finally, the ALJ found that when the claimant did consult a physician, over three months after the alleged injuries, the physician imposed no restrictions upon any of the claimant’s activities, including work activities. These factual findings are supported by substantial evidence in the record, and thus we may not disturb them. See F. R. Orr Construction v. Rinta, supra. Further, they are consistent with the ALJ’s finding that the claimant failed to sustain “her burden of proving that she was injured in the course of her employment . . . .” We have no basis for disturbing this determination. See Prestige Homes, Inc. v. Legouffe, supra. We also have no basis for disturbing the ALJ’s determination that the claimant’s testimony was not credible. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970).
Finally, the ALJ’s determination that the claimant did not sustain a compensable injury in the course of this employment supports the denial of temporary total disability benefits. Section 8-41-301(1)(b), C.R.S. 1997 (compensation contingent on showing that injury resulted from activity arising out of and in the course of employment).
In view of our conclusion that the evidence supports the ALJ’s determination that the claimant did not sustain a compensable injury in the course of this employment, it is unnecessary to address the claimant’s remaining argument.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 26, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ______________________________ David Cain
______________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed July 6, 1998 to the following parties:
Laurie D. Adams, 1287 South Troy Street, Aurora, CO 80012
Colorado Denver Mission, 2001 E. Phillips Cir. #3969, Littleton, CO 80122-3264
Lumbermen’s Mutual Casualty Co., c/o Kemper Insurance Co., P.O. Box 5347, Denver, CO 80217
Karen R. Wells, 3900 E. Mexico Ste. 1000, Denver, CO 80210 (For the Respondents)
Gary P. Johnson, P.O. Box 101434, Denver, CO 80250 (For the Claimant)
Jeanne Elliott, 910 16th St., Ste. 1125, Denver, CO 80202