W.C. No. 4-358-203Industrial Claim Appeals Office.
July 22, 1999.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied and dismissed his claim for workers’ compensation benefits. We affirm.
The claimant alleged that he sustained a low back injury on September 26, 1997, when he tripped over a hydraulic lift in a garage at the employer’s premises. The claimant testified that he immediately reported the injury to the employer. The respondents filed a notice of contest and the Employer’s First Report of Injury denied knowledge of the injury until October 17, 1997.
Following a hearing on May 7, 1998, the ALJ determined the claimant failed to sustain his burden to prove that his low back pain is the result of a work-related injury on September 26, 1997. In support, the ALJ relied on a report dated September 26, 1997, from the emergency room of the St. Joseph’s Hospital which indicated the claimant gave a history of sciatic pain in the low back for a week. The claimant was also examined by a physician’s assistant at Kaiser Permanente, who reported the claimant gave a history of low back pain for two weeks and had “no known injury.” Further Dr. Keller’s report dated September 26 and Dr. Dodge’s intake report dated September 29 reflect the claimant denied any traumatic injury preceding his symptoms of low back pain. The ALJ found the medical records inherently reliable and rejected the claimant’s testimony to the contrary. The ALJ also found the claimant had a history of low back problems dating back to 1984 when he was diagnosed and treated for spondylolisthesis at L4-5.
Initially, we note the respondents’ contention that the ALJ erroneously failed to strike the claimant’s brief in support of the petition to review. However, we need not reach the issue of whether the claimant’s brief was timely filed because we conclude the claimant’s arguments are not persuasive.
The claimant disputes the ALJ’s findings of fact and contends the record compels the finding of a compensable injury. In support, the claimant relies on a September 30, 1997, CT scan which shows a broad based bulge of the annulus fibrosis at L4-5.
A compensable injury is an injury which arises out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 1998 Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). The claimant bears the burden to prove a compensable injury by a preponderance of the evidence. Section 8-43-201 C.R.S. 199 ; Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Whether the claimant has sustained his burden of proof is a question of fact for resolution by the ALJ. Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). We must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Under the substantial evidence standard we must defer to the ALJ’s credibility determinations and assessment of the sufficiency and probative weight of the evidence. Where the evidence is subject to conflicting inferences, it is the ALJ’s sole prerogative to determine the inference to be drawn. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Admittedly, the September 1997 CT scan suggests that the claimant’s lumbar spine has worsened since he was diagnosed with spondylolisthesis. However, we agree with the ALJ that the report does not necessarily establish that the change is due to a work-related injury on September 26, 1997. (Conclusions of Law).
To the contrary, the claimant testified that he was experiencing low back pain prior to the alleged industrial injury. (Tr. p. 21). There is also substantial evidence in the medical records to support the ALJ’s finding that the claimant did not relate his low back symptoms to a work-related injury on September 26, 1997. Based upon this evidence the ALJ could, and did, reasonably infer that the claimant failed to sustain his burden to prove that his symptoms are causally related to a work-related injury.
Moreover, our review is limited to the evidence submitted to the ALJ, and documents attached to briefs do not constitute evidence in the case. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Therefore, we are unable to consider the “medical report” dated December 3, 1998, which is attached to the claimant’s brief in support of the petition to review.
The claimant also contends that he was denied due process of law. Specifically, the claimant alleges the hearing was “prejudicial and disconcerting.” The claimant contends that the ALJ was “extremely prejudicial and downright not interested in whether” a compensable injury occurred. The claimant also asserts that the ALJ “overruled everything my attorney had to say,” that the ALJ would “sustain any objections that my attorney presented,” and that the ALJ allowed the respondents to present irrelevant evidence. We reject these arguments.
Due process of law requires that the claimant be afforded the opportunity to be heard by an impartial ALJ, and the opportunity to present evidence and cross-examine the employer’s evidenc . Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995) In determining whether the claimant has been afforded due process, the ALJ is entitled to the presumption of integrity, honesty, and impartiality and bald allegations of bias are insufficient to overcome that presumption. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985).
We have reviewed the hearing transcript. The record does not support the claimant’s allegations of bias and irregularities. The ALJ afforded the claimant a full and fair opportunity to be heard. Further, we perceive no error in the ALJ’s evidentiary rulings. (Tr. pp. 13, 14, 28, 29, 35). In fact, the ALJ’s failure to grant the respondents’ motion to dismiss after the claimant refused to testify inured to the benefit of the claimant. Therefore, we have no basis to remand the matter for a new hearing. See Williamson v. School District No. 2, 695 P.2d 1173
(Colo.App. 1984) (party challenging order must show sufficient prejudice before it is reversible error).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 12, 1997, is affirmed.
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed July 22, 1999
the following parties:
Raymond Barela, 1409 Lipan St., Denver, CO 80204
U S West Communications, 5325 Zuni St., Room A39, Denver, CO 80221-1454
Cathy Barna, U S West Communications, 1801 California, Room 1150, Denver, CO 80202
Reliance Insurance Company, c/o Sedgwick James, P.O. Box 101268, Denver, CO 80250-1268
Glenda Johnson, Sedgwick Claims Management Services, 1801 California St., Room 1140, Box 74, Denver, CO 80202
Leonard Martinez, Esq., 1736 Race St., Denver, CO 80206
Michael A. Perales, Esq., Ritsema Lyon, P.C., 999 18th St., Ste. 3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy