IN RE MITCHELL, W.C. No. 4-490-605 (6/20/02)


IN THE MATTER OF THE CLAIM OF DENNIS MITCHELL, Claimant, v. TRI STAR MASONRY, INC., Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-490-605.Industrial Claim Appeals Office.
June 20, 2002.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied the claim for workers’ compensation benefits and permitted the respondents to withdraw an admission of liability. We affirm.

In February 2001, the claimant filed a claim for benefits alleging injury to his right arm and neck while “placing block at work” on January 8, 2001. Initially, the respondents admitted liability. However, the respondents subsequently sought to withdraw the admission on grounds the claimant had not sustained a work-related injury.

The matter proceeded to hearing on December 20, 2001. On January 8, 2002, the ALJ entered the order denying and dismissing the claim and permitting the respondents to withdraw the admission. The ALJ found the claimant’s testimony concerning the alleged injury or occupational disease was not credible because it was internally inconsistent, inconsistent with a number of medical records, and contradicted by the testimony of another witness.

The claimant filed a petition to review containing general allegations of error regarding the sufficiency of the evidence and the correctness of the ALJ’s application of the law. The claimant did not file a brief in support of the petition to review. Under these circumstances, the effectiveness of our review is limited.

The ALJ correctly determined the claimant was required to prove an injury or occupational disease proximately caused by the performance of a service arising out of and in the course of his employment. Section 8-41-301(1)(b) and (c), C.R.S. 2001; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The fact the respondents previously filed an admission of liability did not alter the claimant’s burden of proof. Pacesetter Corp. v. Collett, ___ P.3d ___ (Colo.App. No. 00CA2099, May 10, 2001).

The question of whether the claimant proved that he sustained an injury or disease caused by his employment was one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.

We have reviewed the transcript of hearing and the evidence submitted at the hearing. The ALJ’s pertinent findings of fact, including those concerning the claimant’s credibility, are supported by substantial evidence in the record and plausible inferences drawn therefrom. Consequently, we are not at liberty to interfere with these findings. Moreover, the findings support the legal conclusion the claimant failed to prove an injury or disease caused by the employment. Consequently, there is no basis for interfering with the order.

Although the respondents correctly state that we have discretionary authority to dismiss a non-specific petition to review, we decline to do so in this case. See Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989). Here, unlike the situation in Fuller v. Budweiser, Pueblo Distributing, W.C. No. 4-429-730 (December 18, 2001), we are not faced with a “complex fact pattern which may or may not implicate various principles of law.” Rather, this case presents a straightforward issue concerning the sufficiency of the evidence to support the ALJ’s findings on the issue of causation, and it does not require us to speculate about the basis of the appeal. Indeed, the respondents themselves briefed the causation issue. Therefore, we have chosen to address the merits of the claimant’s petition to review.

IT IS THEREFORE ORDERED that the ALJ’s order dated January 8, 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, 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 Street, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed June 20, 2002 to the following parties:

Dennis Mitchell, 2850 Mason Way, Colorado Springs, CO 80916

Tri Star Masonry, Inc., 2410 N. Powers Blvd., Colorado Springs, CO 80915-1533

Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)

Thomas M. Stern, Esq., 600 17th St., #1600N, Denver, CO 80202

By: A. Hurtado