W.C. No. 4-520-960 4-524-854.Industrial Claim Appeals Office.
October 30, 2003.
FINAL ORDER
In these consolidated claims the claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied a petition to reopen, determined the claimant did not sustain a new injury on December 7, 2001, and denied claims for temporary total disability (TTD) benefits and medical benefits. We affirm.
The claimant sustained an admitted low back injury on October 11, 2001, while performing duties as a housekeeper. The claim for this injury was assigned W.C. No. 4-524-960. The claimant was placed on light duty and returned to work. On November 28, 2001, the treating physician determined the claimant reached maximum medical improvement (MMI), released the claimant to return to work without restrictions, and assigned no permanent medical impairment. The ALJ found the claimant failed timely to contest the MMI and impairment determinations and these issues were closed. (Findings of Fact 26).
The claimant testified that she experienced an exacerbation of low back pain on December 7, 2001, while cleaning a bathtub. The claimant was taken to an emergency room by ambulance. Thereafter, the claimant never returned to work for the employer.
The claimant alleged the December 7 incident constituted a “new injury,” and the claim for this injury was assigned W.C. No. 4-524-854. The claimant sought TTD and medical benefits for treatment of the injury. Alternatively, the claimant alleged the December 7 incident represented a worsening of the October 11 injury and sought to reopen that claim on the issues of TTD and medical benefits.
The ALJ entered extensive findings of fact and conclusions of law, and resolved all issues against the claimant. The ALJ relied principally on the reports and deposition testimony of the treating physician and the reports and hearing testimony of a referral physician. Specifically, the ALJ concluded the claimant’s condition did not worsen after she was placed at MMI for the October 11 injury, and the claimant was not disabled from performing her regular employment after November 28, 2001. The ALJ also relied on the opinions of these physicians, as well as the lay testimony of the claimant’s coworkers, to find the claimant did not sustain any new injury on December 7. Finally, the ALJ determined the claimant was responsible for the separation from employment after December 7 because she failed to return to work.
The claimant filed a petition to review the ALJ’s order. Generally, the petition contests the sufficiency of the findings of fact to support the order as to all issues, disputes the sufficiency of the evidence to support the findings of fact, and alleges the ALJ failed to resolve pertinent conflicts in the evidence. The claimant failed to file a brief in support of the petition to review. Further, the record contains only a partial transcript of the first of two hearings, and that transcript does not include the testimony of the respondents’ witnesses. Under these circumstances, the effectiveness of our review is limited.
The question of whether the claimant proved a worsening of condition causally related to the October 11 injury was one of fact for determination by the ALJ. Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002). The question of whether the claimant proved a new compensable injury on December 7 was also one of fact. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Consequently, we must uphold the ALJ’s resolution of these issues if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Jarosinski v. Industrial Claim Appeals Office, supra.
In applying the substantial evidence test, we must defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). Because the claimant failed to procure a complete transcript of the hearing in this case, we must also presume the ALJ’s findings concerning the testimony and credibility of witnesses are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Further, the ALJ need not make findings concerning every piece of evidence as long as the basis of the order is clear from those findings which are entered. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, we have no difficulty ascertaining the basis of the ALJ’s conclusions that the claimant failed to prove a worsening of the October 11 injury or a new injury on December 7. These conclusions are amply supported by the ALJ’s findings based on the medical testimony and reports, as well as the findings concerning the testimony of the claimant’s coworkers. (See in particular Findings of Fact 32-33). Cf. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. Therefore, we reject the arguments that the ALJ’s findings of fact are insufficient to support the conclusions of law and appellate review. Further, based on our review of the documentary evidence in the record, and the requirement that we presume the record supports the ALJ’s findings concerning the testimony, we hold that the ALJ’s findings of fact are supported by substantial evidence in the record.
Even if the claimant had proved a worsening of condition or a new injury, the record supports the ALJ’s determinations that the claimant suffered no temporary disability because she remained at MMI and able to perform her regular work after November 28, 2001 See PDM Molding, Inc. v. Industrial Claim Appeals Office, 898 P.2d 542 (Colo. 1995); Davisson v. Rocky Mountain Safety, Inc.,
W.C. No. 4-283-201 (June 21, 1999) (TTD requires proof of loss of physical function and consequent impairment of wage earning capacity evidenced by inability to return to prior work). Similarly, the ALJ correctly applied the law to the facts in determining that the claimant was responsible for the termination of employment. Section 8-42-105(4), C.R.S. 2002; Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061
(Colo.App. 2002).
Insofar as the claimant’s petition to review may be construed to raise additional issues, we find such arguments to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 26, 2002, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. 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 order were mailed to the parties at the addresses shown below on October 30, 2003 by A. Hurtado.
Maria Elena Becerril, 1625 W. 85th Ave., #101, Denver, CO 80260
Westin Westminster, 10600 Westminster Blvd., Westminster, CO 80020
Zurich Insurance Company, c/o Gallagher Bassett Services, Inc., P.O. Box 4068, Englewood, CO 80155-4068
Marsha A. Kitch, Esq., 1202 Bergen Pkwy., #311, Evergreen, CO 80439 (For Respondents)