W.C. No. 4-704-536.Industrial Claim Appeals Office.
October 29, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated May 22, 2008, that denied and dismissed the claimant’s claim. We affirm.
The claimant contends that on October 4, 2006, while performing her duties for the employer she bent slightly over to pick up a cow hoof and injured her low back. The ALJ found the testimony of the claimant to be inconsistent and not persuasive. Dr. Thiel opined that the claimant suffered back pain from ligament laxity secondary to her pregnancy. Dr. Lesnak agreed that the claimant’s symptoms were not work related but solely related to her pregnancy. The ALJ found these medical opinions to be persuasive. The ALJ concluded that the claimant failed to show by a preponderance of the evidence that she suffered a compensable injury to her low back while employed with the respondent. Consequently, the ALJ denied and dismissed the claim.
The petition to review identifies two grounds for appeal. The claimant contends that the findings of fact are not supported by the evidence and that the order is contrary to the law. The claimant has not filed a brief in support of her petition to review and, therefore, 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 had the burden to prove by a preponderance of evidence that her back injury arose out of and in the course of her employment. Section 8-43-301(1)(c), C.R.S. 2008; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Proof by a preponderance of the evidence requires the
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proponent to establish that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. In resolving this issue the ALJ was not required to cite disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). To the contrary, the ALJ is only required to enter findings on the evidence she found dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Consequently, the absence of specific findings of fact on the evidence the claimant relies upon in support of her claim does not compel a finding the ALJ failed to consider the evidence. Cf. Wecker v. TBL Excavating, Inc., 908 P.2d 1186
(Colo.App. 1995); Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) (presumption exists that ALJ considered and gave due weight to relevant statutory factors).
On review the issue is whether the ALJ’s findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard we are required to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999).
The claimant has not provided a transcript of the hearing held on February 29, 2008. See § 8-43-301(2), C.R.S. 2008 (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 made the following pertinent findings of fact. The claimant testified that on October 4, 2006, while performing her duties for the employer she bent slightly over to pick up a cow hoof and injured her low back. At the time of the alleged injury the claimant was abou 2 ½ months pregnant. Earlier in the day the claimant had presented herself at the employer’s nurse’s station complaining of low back pain. The claimant alleges that later that day she suffered the low back injury at issue. The claimant did not seek treatment for the alleged October 4, 2006 low back injury until two weeks later, when she again appeared at the employer nurse’s station. The claimant offered no
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credible reason for her delay in seeking treatment. On October 24, 2006, Dr. Thiel examined the claimant when she was three months pregnant. Dr. Thiel opined that the claimant suffered back pain from ligament laxity secondary to her pregnancy. The ALJ found the opinion of Dr. Thiel to be credible and persuasive. Dr. Lesnak examined the claimant, authored a report and testified at the hearing. Dr. Lesnak noted that the claimant’s low back range of motion was normal for someone of her size and pregnant status. Dr. Lesnak noted no evidence of muscle spasm or trigger points during his examinations of the claimant. Dr. Lesnak opined that the mere activity of bending over to pick up a one or two pound cow hoof was not sufficient to cause any significant anatomic injury or even significant symptoms. Dr. Lesnak opined that he found no objective evidence of injury during his two evaluations of the claimant. He stated that the claimant’s symptoms were not work related but solely related to her pregnancy. The ALJ found the report and hearing testimony of Dr. Lesnak to be credible and persuasive.
Moreover, beyond the findings noted above, which we must presume are supported by substantial evidence, we also note that the ALJ’s conclusion is supported by medical reports contained in the record. Dr. Thiel assessed the claimant as having back pain from ligament laxity secondary to her pregnancy. Exhibit D at 1. Dr. Lesnak agreed with Dr. Thiel that the claimant’s symptomatology was unrelated to any work activities at the employer and appeared to be related to her pregnancy. Exhibit E at 5.
The ALJ’s findings of fact are supported by substantial evidence in the record. The findings are also sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and her credibility determinations. The ALJ also correctly applied the law. Therefore the claimant has failed to establish any basis on which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued May 22, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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SUSANA JIMENEZ-CHAVEZ, GREELEY, CO, (Claimant), CARGILL MEAT SOLUTIONS, Attn: ESTHELA NUNEZ, FORT MORGAN, CO, (Employer), SAWAYA ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
OVERTURF MCGRATH HULL DOHERTY, PC, Attn: CHRISTOPHER CONDIT, ESQ., DENVER, CO, (For Respondents).
SPECIALTY RISK SERVICES, Attn: MARGARET JOHNSON, DENVER, CO, (Other Party).
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