W.C. Nos. 4-372-748 4-398-111Industrial Claim Appeals Office.
April 17, 2001
FINAL ORDER
The claimant seeks review of orders of Administrative Law Judge Gallegos (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers’ compensation. We affirm.
The claimant alleged a work-related injury in January 1998, resulting in headaches and right shoulder pain. The claimant worked at Payless Shoesource Inc. (Payless) less than 10 hours a week. Her job duties included locating stock, operating a cash register and replenishing stock. At the time of the injury the claimant held concurrent employment at Colorado Springs Auto Auction (CSAA). On appeal, it is undisputed the claimant’s injury was not caused by her work for CSAA.
Dr. Eric Riding conducted an independent medical examination. In his report dated April 7, 1998, Dr. Riding diagnosed the claimant with mild hypertrophic degenerative acromioclavicular arthritis at the right AC joint. Dr. Riding opined there was “no history to confirm within medical probability that [the claimant’s] employment 8 hours per week at Payless Shoe Source is the cause of her degenerative acromioclavicular arthritis.” (Riding depo. p. 6). Rather Dr. Riding opined the Payless work “may have temporarily exacerbated [the claimant’s] underlying arthritis,” but that her need for treatment was not the result of the employment. (Riding April 7, 1998). In support, Dr. Riding stated there was no reported trauma, specific incident or change in activities at Payless that would “lead one to suspect that would lead to the development of AC joint arthritis.” Dr. Riding also relied on the fact that the claimant only work a “small number of hours per week” at Payless in the year preceding the date of injury. (Riding depo. pp. 6-7).
The ALJ found the claimant suffers from degenerative arthritis. The ALJ also determined the claimant failed to sustain her burden to prove a causal relation between the employment and the arthritis. Therefore, the ALJ determined the claimant failed to prove a compensable injury. In support, the ALJ explicitly relied on the opinions of Dr. Riding and rejected the contrary opinions of Dr. Ogrodnick and Dr. Phelps. Consequently, in an order dated May 12, 2000, the ALJ denied and dismissed the claim for workers’ compensation benefits. The claimant timely filed a petition for review.
On December 8, 2000, the ALJ issued a Supplemental Order which added further findings of fact and conclusions of law in support of the order denying benefits. The claimant filed a petition to review the Supplemental Order.
Section 8-43-301(4), C.R.S. 2000, provides that the ALJ may issue a supplemental order within 30 days of the date “the briefs are filed or the time for filing has run.” Here, a notice of briefing schedule was issued on September 27, 2000, which gave the claimant until October 17 to file a brief in support of the petition to review. The respondents’ answer brief was due November 6. The claimant did not file a brief in support of the petition and the respondents did not file an answer brief. Under these circumstances, the ALJ had until December 6, 2000 to issue a supplemental order. Because the ALJ’s Supplemental Order was not issued within 30 days of the time for briefing had expired, the ALJ exceeded her jurisdiction by issuing the December 8 Supplemental Order Hillebrand Construction Co. v Worf, 780 P.2d 24 (Colo.App. 1989). Consequently, the Supplemental Order is void and we shall consider the claimant’s petition to review the May 12 order.
The petition to review contains general allegations of error. See
§ 8-43-301(8), C.R.S. 2000. The claimant also contends the ALJ erroneously determined the claimant failed to establish a compensable injury at Payless. However, in the absence of a supporting brief the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
We note that the claimant’s designation of record includes a “complete Division of Workers’ Compensation file.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925
(Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file. Instead, we have restricted our review to the record made at the hearing. See City of Boulder v. Dinsmore, supra.
It was the claimant’s burden to prove by a preponderance of evidence that she suffered a compensable injury at Payless. Section 8-43-201
C.R.S. 2000; Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). A compensable injury is one which arises out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2000; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Where the claimant’s entitlement to workers’ compensation benefits is disputed, the claimant must prove a causal relationship between the need for treatment and the conditions of employment. See § 8-41-301(1)(c), C.R.S. 2000; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Whether the claimant sustained her burden of proof is a question of fact for the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Because the issues are factual, we must uphold the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of the witnesses, and we may not reweigh the evidence on appeal. City of Durango v. Dunagan, supra; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the medical evidence based upon her decision to credit Dr. Riding’s testimony. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, the ALJ’s findings of fact are supported by substantial evidence in the testimony of the claimant and Dr. Riding. Therefore it is immaterial the record contains medical evidence which, if credited, might support a contrary determination. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Further, the findings support the conclusion that the claimant failed to prove that her work activities at Payless are the proximate cause of her upper extremity condition. Therefore, it the ALJ did not err in dismissing the claim See 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 May 12, 2000, is affirmed.
IT IS FURTHER ORDERED that the ALJ’s Supplemental Order dated December 8, 2000, is void.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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 April 17, 2001 to the following parties:
Gloria J. Baldonado, 405 Turf Trail Pl., Fountain, CO 80817
Terry Curry, Senior Risk Analyst, Payless Shoesource, Inc., 3231 S.E. 6th St., Topeka, KS 66607
Colorado Springs Auto Auction, 500 Willow Spring Rd., Fountain, CO 80817-2715
Insurance Company of the State of Pennsylvania, Gloria Molinar, Adjuster, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Crawford Crawford, P. O. Box 6502, Englewood, CO 80155-6502
Shawn Williams, Crawford Crawford, P. O. Box 92091, Los Angeles, CA 90009
Barkley D. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Pamela L. Mosher, Esq. and W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents Payless Shoesource, Inc. and Insurance Company of the State of Pennsylvania)
Kathleen North, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents Colorado Springs Auto Auction and Crawford Crawford)
BY: A. Hurtado