W.C. No. 4-395-348Industrial Claim Appeals Office.
September 17, 2001
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied and dismissed the claim for workers’ compensation benefits. We affirm.
In 1989 the claimant suffered admitted injuries. The claimant was subsequently diagnosed with fibromyalgia, unrelated to the industrial injury. In April 1997, the claimant entered into a full and final settlement agreement for injuries to her “back, ribs, neck and body.” In 1998 the claimant filed a new workers’ compensation claim which alleged that repetitive data entry activities required by her employment after April 1997 aggravated her pre-existing neck and back condition, and caused her to suffer headaches and bilateral hand pain.
On conflicting medical evidence the ALJ found the claimant failed to prove a compensable aggravation of her pre-existing condition. Instead, the ALJ found it more probable the claimant’s worsened condition was a natural consequence of the 1989 injury, the progressive fibromyalgia and the claimant’s pre-existing depression. Therefore, the ALJ denied and dismissed the 1998 claim for workers’ compensation benefits.
The claimant’s Petition to Review alleged the ALJ’s order is not supported by substantial evidence in the record. The claimant also contends the ALJ “erred as a matter of law.” However, the claimant has not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
To prove a compensable injury the claimant was required to prove that her worsened condition was proximately caused an injury arising “out of and in the course of” his employment. Section 8-41-301(1)(c), C.R.S. 2000; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000). A compensable injury may result from the aggravation of a pre-existing condition. H H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990). Where the alleged aggravation is the result of a prolonged exposure occasioned by the nature of the employment and not a traumatic event, the alleged injury is an “occupational disease.” See Colorado Mental Health Institute v. Austill, 940 P.2d 1125 (Colo.App. 1997).
The question of whether the claimant has met her burden of proof 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. 2000. Under this standard, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his 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).
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 evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
The claimant has not provided a transcript of the hearing on April 25, 2000. See § 8-43-301(2), C.R.S. 2000 (petitioner shall, at the time of the filing of the petition to review, “order any transcript relied upon for the petition to review, arrange with the hearing reporter to pay for the same and notify opposing parties of the transcript ordered.”); Bohan v. Direct Connection Executive Courier Service, Inc.,
W.C. No. 4-355-119 (October 22, 1998), aff’d. on other grounds, Direct Connection Executive Courier Service, Inc., v. Industrial Claim Appeals Office, (Colo.App. No. 98CA2159, May 27, 1999) (not selected for publication) . Under these circumstances we are required to 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).
The ALJ’s findings are also supported by substantial evidence in the medical reports of Dr. Amick and Dr. Goldman. Moreover, the ALJ’s factual determinations support the conclusion that the claimant failed to prove she suffered a new injury in the nature of an occupational disease. Therefore, the ALJ did not err in dismissing the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 9, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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 September 17, 2001 to the following parties:
Laurie M. Espinoza, 1892 S. Raleigh St., Denver, CO 80219
Metropolitan State College 270, P. O. Box 173362, Campus Box 47, Denver, CO 80217-3362
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Joel M. Pollack, Esq., 999 18th St., #3100, Denver, CO 80202
BY: A. Pendroy