W.C. No. 4-485-296Industrial Claim Appeals Office.
January 28, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers’ compensation benefits.
The claimant filed a workers’ compensation claim which alleged a work-related injury which caused numbness in her right hand and arm and pain in her right wrist, shoulder and neck. The respondent denied liability.
At a hearing on July 23, 2001, the claimant presented medical records which indicated the claimant was diagnosed with a C4-5 disc protrusion, carpal tunnel syndrome, and lateral epicondylitis and was instructed to avoid repetitive motion activities with the right upper extremity. The claimant also presented the testimony of Dr. Camarata and Dr. Connett. However, the claimant did not testify.
In denying the claim, the ALJ found no credible evidence the claimant suffered a traumatic injury while working as a stocking clerk. Further, the ALJ determined the claimant failed to prove by a preponderance of evidence that her upper extremity problems were a natural incident of the employment. Therefore, the determined the claimant failed to prove a compensable occupational disease.
The claimant’s Petition to Review alleges the ALJ’s findings of fact are not supported by the evidence. Instead, the claimant contends there is a preponderance of credible medical evidence showing a causal connection between her upper extremity problems and her employment activities. The claimant also contends Dr. Connett erred in concluding the claimant’s condition was not work-related. Therefore, the claimant contends the ALJ should not have relied on Dr. Connett’s testimony in denying the claim.
The claimant has not filed a brief in support of her 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 the condition for which she sought workers’ compensation benefits was proximately caused by an injury arising “out of and in the course of” his employment. Section 8-41-301(1)(c), C.R.S. 2001; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The “arising out of” test is one of causation, and requires that the injury have its origin in an employee’s work-related functions. Section 8-41-301(1)(b), C.R.S. 2001.
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 in the record. Section 8-43-301(8), C.R.S. 2001. 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). Accordingly, insofar as the claimant requests that we reweigh the evidence on review, we have no authority to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994)
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 her 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 July 23, 2001. 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). Further, in the absence of a transcript of Dr. Connett’s testimony, we cannot say the ALJ erred as a matter of law in crediting Dr. Connett’s testimony that the claimant’s upper extremity problems were not work-related. Moreover, the ALJ’s factual determinations support the conclusion the claimant failed to prove she suffered a compensable injury. Therefore, the ALJ did not err in dismissing the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 31, 2001 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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. 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 January 28, 2002 to the following parties:
Annette Folks, 208 W. Baseline Rd., Lafayette, CO 80026
Safeway, Debbie Dunst, Safeway Risk Management, P. O. Box 5927 T. A., Denver, CO 80217
Safeway, 5918 Stoneridge Mall Rd., Pleasanton, CA 94588
Kathryn Kaeble Todd, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
Darryl Elliott, Esq., 1600 Pennsylvania St., Denver, CO 80203
BY: A. Pendroy