W.C. No. 4-484-387Industrial Claim Appeals Office.
August 7, 2002.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged an injury on November 21, 2000 while setting up a portable crusher with the brother of the owner of the company. The ALJ found the brother did not observe the claimant suffer any injury on November 21.
The claimant sought treatment on December 4, 6, 11, 14 for complaints of dizziness, headaches and vertigo. The claimant did not report any trauma or work-related injury during these medical visits. On December 13 the claimant reported to the employer that he hit his head on the crusher on November 21. The claimant made a similar report to Dr. Boehle on December 14. However, the ALJ found Dr. Boehle subsequently opined it was unlikely the claimant suffered any such work injury on November 21. Under these circumstances, the ALJ found the claimant’s testimony that he suffered a work-related injury on November 21, 2000 was not credible and denied the claim.
The claimant timely appealed the ALJ’s order. However, the claimant did not file a brief in support of the petition to review.
The failure to file a brief in support of the petition to review is not a jurisdictional defect which deprives us of jurisdiction. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). Furthermore, we have no difficult ascertaining the basis for the claimant’s appeal. Consequently, we deny the respondents’ request that we decline to review the ALJ’s order.
To prove a compensable injury the claimant was required to prove his need for medical treatment 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 met his 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). We may not disturb an ALJ’s order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law. Section 8-43-301(8), C.R.S. 2001.
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).
Further, the claimant has not provided a transcript of the hearing on October 11, 2001. See § 8-43-301(2), C.R.S. 2001 (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.”) 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 the medical reports in the record. Moreover, the ALJ’s factual determinations support the conclusion that the claimant failed to prove a causal connection between the employment and the medical condition for which he sought workers’ compensation benefits. Therefore, the ALJ did not err in denying the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 2, 2001, 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. 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 August 7, 2002 to the following parties:
Trevor Harrison, P. O. Box 1093, Logandale, NV 89021
Colorado Crushing, Inc., 7707 3 R. Road, Beulah, CO 81023-9727
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Michael W. McDivitt, Esq., 19 E. Cimarron St., Colorado Springs, CO 80903 (For Claimant)
Richard M. Lamphere, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903
BY: A. Hurtado