W.C. No. 4-634-603 4-649-000.Industrial Claim Appeals Office.
May 21, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Connick (ALJ) dated October 4, 2006, that denied and dismissed the claimant’s claims for compensation in W.C. No. 4-634-603 and in W.C. No. 4-649-000. We affirm.
The ALJ considered two workers’ compensation claims in her order. The ALJ’s pertinent findings of fact, together with references to corresponding evidence in the record, are provided as follows. Regarding the October 27, 2004 claim, which bears the W.C. No. 4-634-603, the ALJ made the following findings. The claimant worked as a housekeeper and groundskeeper for the employer. The claimant testified that on October 27, 2004 she was painting in a stairwell and injured her right hand while moving a ladder. She also alleged injuries to her arm and upper extremity including her shoulder as a result of this accident.
The claimant’s hours painting for the employer were recorded on time cards. In the time card filled in by the claimant herself it was noted that she did not work on the claimed day of the injury, October 27, 2004. Exhibit H at 41; Tr.(6/23/06) at 34. The claimant first sought treatment on December 7, 2004, six weeks after the alleged October 27, 2004 accident. Tr. (11/8/05) at 48. The claimant continued to work for the employer, including voluntary additional painting hours, during a six-week period following her alleged injury until she sought medical treatment for her hand pain on December 7, 2004. Tr. (11/8/05) at 47-48. The claimant waited six weeks before notifying her employer of
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the alleged October 27, 2004 injury. Tr. (11/8/05) at 56. Dr. Brodie testified that it was medically improbable that the October 27, 2004 incident could cause injuries to her hand and upper extremity as she alleged. Tr.(11/27/06) at 19, 21-23. The ALJ found that the medical evidence was in conflict regarding whether the claimant suffered a fracture to her fifth finger consistent with an October 27, 2004 injury. X-ray’s were interpreted as showing an intraarticular fracture of the proximal phalanx of the little finger. Later interpretations indicated no fracture but an asymptomatic congenital ununited ossicle, which appears on an x-ray as a fracture. Tr. (6/27/06) at 96-97; Exhibit YY at 185-186. The claimant asserted that she was never asked in the emergency room on December 7, 2004, whether she hit or bumped her hand when in fact this question was answered by her in the negative. Tr. (11/8/05) at 49; Exhibit MM at 144. The ALJ found the claimant was not a credible witness. The ALJ concluded that the claimant had failed to establish that the October 27, 2004 incident occurred and denied the claim for compensation and benefits in W.C. No. 4-634-603.
The ALJ’s pertinent findings of fact regarding the April 29, 2005 claim, which bears the W.C. No. 4-649-000, are as follows. The claimant alleged she sustained a work-related injury to her right lower back on April 29, 2005. The claimant testified she was sweeping and mopping stairwells for the employer and lost her equilibrium, twisted and stepped backwards with her right foot off a single step. She did not fall but felt an immediate burning, mushy, slimy, very hot feeling in her right back. The claimant has osteoporosis and a history of a pre-existing lumbar spine condition predating her employment with the employer. The ALJ credited the opinion of Dr. Brodie that it was not medically probable that the claimant aggravated or accelerated her pre-existing spine condition as a result of the April 29, 2005 stepping incident or that her back injuries were caused by the incident. Tr. (6/27/06) 31-32. The ALJ found the claimant’s credibility was undercut by her insistence that she did not treat for back pain between back surgery she had in 2000 and a slip and fall she had in 2003, even when confronted with the record of treatment. Tr.(6/23/06) at 101. The claimant asserted incredibly that her back pain was completely resolved before the April 29, 2005 incident. However the clamant was receiving ongoing treatment for her back and reported back pain of eight out of ten on March 25, 2005, five weeks prior to the alleged April 29, 2005 incident. Tr. (11/8/05) at 70; Exhibit TT 159-160. The ALJ concluded that it was medically improbable that the April 29, 2005 stepping incident aggravated or accelerated the claimant’s pre-existing spine condition based on the low energy impact of the incident, the claimant’s preexisting right radicular pain, and the absence of MRI evidence of trauma. The ALJ denied and dismissed the claimant’s claim for compensation and benefits in W.C. No. 4-649-000.
On appeal the claimant has filed a lengthy brief in which she argues for various forms of relief. We first note that the claimant’s request for payment of overtime wages
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she contends she is owed is beyond the scope of our review. Section 8-43-301(8), C.R.S. 2006.
The claimant requests that a certain witness be summoned to appear who she alleges refused to appear in the first three hearings held. The claimant appears to contend she was denied due process. We acknowledge that due process requires the parties be afforded an opportunity to confront adverse witnesses and present evidence in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076
(Colo.App. 1990). However, at the inception of the hearing the claimant identified as witnesses only herself and one other witness who later was called and testified on behalf of the claimant. Tr.(11/8/05) at 4. At the last hearing counsel for the claimant noted he had no further witnesses to present Tr. (6/27/06) at 3. We perceive no violation of the claimant’s due process rights.
In an order dated September 13, 2006 the matter, because of unforeseen circumstances, was reassigned to ALJ Connick after it had been heard before ALJ Coughlin. ALJ Connick reviewed the digital recording of the hearing testimony as well as all evidence and pleadings in the record and then issued her Findings of Fact, Conclusions of Law and Order, which is the subject of the present appeal. In our opinion the claimant was not denied due process on the basis that the ALJ who actually presided over the hearing did not decide the case. Due process requires that an ALJ either hear or read the evidence prior to issuing a decision. State Compensation Insurance Fund v. Fulkerson, 680 P.2d 1325
(Colo.App. 1984). In Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516
(Colo.App. 1985), the court concluded that the employer’s due process rights were not implicated where the hearing officer who had not presided over the evidentiary hearing read the hearing transcript before issuing an order concerning the claimant’s entitlement to workers’ compensation benefits.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The question of whether the claimant met her burden to prove a compensable injury is one of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence of the record. Section 8-43-301(8), C.R.S. 2006. Under this standard, we must defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence, and her assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The claimant’s assertion notwithstanding, although there was conflicting evidence produced at the hearing, as outlined above the ALJ’s findings are amply supported by
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substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192
(Colo.App. 2002). We have considered the claimant’s remaining arguments and they do not alter our conclusions. We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 4, 2006 is affirm.
INDUSTRIAL CLAIM APPEALS PANEL
______________________John D. Baird
______________________Thomas Schrant
Pamela Bodensieck 2812 So. Delaware Street Englewood, CO, Terra Management Group LLC 1165 So. Pennsylvania Street Ste 102 Denver, CO, Pinnacol Assurance Harvey D. Flewelling, Esq. CO, (For Respondents).
Ritsema Lyon, P.C. Margaret A. Metzger, Esq. Denver, CO, (For Respondents)
Moyer, Beal Vranesic John R. Vranesic, Esq., Lakewood, CO, (For Respondents)
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