W.C. No. 4-336-294Industrial Claim Appeals Office.
January 10, 2000
[1] FINAL ORDER
[2] The claimant, pro se seeks review of an order of Administrative Law Judge Rumler (ALJ) which denied and dismissed her claim for death benefits. We affirm.
[3] The decedent, Carroll R. Bash was employed with Young Electric and Manufacturing Company from 1947 to 1949 and 1956 to June 1993, when he retired. The decedent was employed as a metal fabricator and welder which required him to use a “wet wheel” to cut asbestos sheets.
[4] The decedent died on March 26, 1997, and was survived by his widow, Maria C. Bash (the claimant). The claimant alleged the decedent’s death was the result of work related asbestos exposure. Hearings were held before the ALJ on August 25, 1998, and September 15, 1998.
[5] On conflicting expert medical evidence the ALJ determined the claimant failed to prove that the claimant’s work-related exposure to asbestos was a causative factor in the decedent’s death. In support, the ALJ credited Dr. Repsher’s opinion that the decedent did not suffer from asbestosis or any other asbestos-related disease. Rather, Dr. Repsher opined that the claimant died of congestive heart failure. The ALJ also relied on the results of an electron scanning microscopic analysis by the Meixa Tech Laboratory, which showed the decedent did not have enough tremolite and chrysotile in his lungs to support a conclusion that asbestos played a causative role in the decedent’s death. Further, the ALJ found persuasive the finding by pathologists, Dr. Allen and Dr. Colby, of an absence of asbestos bodies in the claimant’s lungs. Consequently, the ALJ determined the claimant failed to prove her entitlement to death benefits.
[6] The claimant timely petitioned for review. The petition contains general allegations of error. See § 8-43-301(8), C.R.S. 1999. On September 9, 1999, a briefing notice was sent to the claimant which gave her twenty days from the date of the notice to file a brief in support of the petition to review. Therefore, the claimant’s brief was due no later than September 29, 1999. The record transmitted to us on review did not contain a brief in support of the petition. However, in response to our acknowledgment letter which specifically advised the claimant that the appellate record did not contain a brief in support of the petition, the claimant sent us a brief dated October 18, 1999. Because the brief was not timely filed, we conclude that it shall not be considered on review.
[7] Nevertheless, even if we considered the claimant’s brief, it would not affect our disposition. In her appellate brief the claimant contests the opinions rendered by the respondents’ experts and the respondents’ representation of the facts.
[8] It is clear there was a direct conflict in the evidence concerning the nature, origin and severity of the claimant’s various medical problems. However, it was the ALJ’s sole prerogative as the fact finder to resolve the conflicts and we may not substitute our judgment for that of the ALJ concerning the inferences to be drawn from the evidence. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
[9] The claimant also argues that the respondents’ evidence was the most persuasive because she was denied effective assistance of counsel. The claimant contends that her former attorney of record did not “properly or intelligently” present the case and that the attorney did not present evidence which was available to explain the Meixa Tech Laboratory report.
[10] Our authority to review the ALJ’s order is limited by §8-43-301(8). That section permits us to set aside the ALJ’s order only on grounds that: the ALJ’s findings are insufficient to permit appellate review, the findings are not supported by substantial evidence in the record, the ALJ failed to resolve pertinent conflicts in the record, the findings do not support the order, or the order is inconsistent with the applicable law. Consequently, we have no authority to set aside the ALJ’s order based upon an inquiry into the adequacy of representation by the claimant’s counsel. Thus, the claimant’s appellate brief does not establish grounds which afford us a basis to grant appellate relief.
[11] Moreover, we have reviewed the ALJ’s findings of fact and the record. The ALJ’s findings of fact are sufficient to permit appellate review, and the findings reveal that the ALJ resolved the pertinent conflicts based upon her credibility determinations See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) (ALJ’s findings are sufficient if the basis for the order is apparent) Martinez v. Regional Transportation District, 832 P.2d 1060
(Colo.App. 1992).
[12] Further, the claimant has not provided a transcript of the August 25 and September 15 hearings. See §§ 8-43-301(2), 8-43-213, C.R.S. 1999 (the petitioner is responsible for arranging payment of the hearing transcript). Under these circumstances, we must presume the ALJ’s findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
[13] Finally, a claimant may not recover death benefits in the absence of proof that the worker’s death was proximately caused by an industrial injury or occupational disease. Section 8-42-115(1)(a), C.R.S. 1999; Claimants in re Death of Rumsey v. State Comp. Ins. Fund, 162 Colo. 545, 427 P.2d 694 (1967). The term “proximately caused” requires the claimant to prove a causal relationship between a work-related injury or disease and the worker’s death. Singleton v. Kenya Corporation, 961 P.2d 571
(Colo.App. 1998).
[14] Here, the ALJ found the claimant failed to present persuasive evidence that the claimant suffered from asbestosis, or that the claimant’s work-related asbestos exposure contributed to his death. Thus, the ALJ’s order denying death benefits is consistent with the applicable law.
[15] IT IS THEREFORE ORDERED that the ALJ’s order dated October 22, 1998, is affirmed.
[16] INDUSTRIAL CLAIM APPEALS PANEL
[17] ___________________________________ Kathy E. Dean
[18] ___________________________________ Robert M. Socolofsky
NOTICE
[19] 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. 1999.
[20] Copies of this decision were mailed January 10, 2000 to the following parties:
[21] Maria Bash, 2020 Irving St., Denver, CO 80211-5045
[22] Young Electric and Manufacturing, Attn: Dave Franzmann, Metron, Inc., 1505 W. 3rd Ave., Denver, CO 80233
[23] Curt Kriksciun, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
[24] B. Anthony Arguello, 1610 Gaylord St., Denver, CO 80206 Subsequent Injury Fund — Interagency Mail
[25] Gregg Carson, Esq., Office of the Attorney General, 1525 Sherman St., 5th floor, Denver, CO 80203 (For Subsequent Injury Fund)
[26] BY: A. Pendroy