W.C. No. 4-674-865.Industrial Claim Appeals Office.
June 4, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated February 1, 2007, that denied and dismissed the claimant’s claim for compensation. We affirm.
The ALJ’s pertinent findings of fact are as follows. On November 17, 2005 the claimant was working for the employer laying erosion control blankets on a hillside. Due to a vertical drop at the end of the slope the claimant was required to wear a harness attached to a safety rope that was secured at the top of the hillside. The claimant worked with another employee “Gio.” At the time in question a spotter was stationed at the top of the hill whose job required him to watch the claimant and Gio to make sure their ropes did not get tangled and they did not fall. The claimant alleged that while working on the slope Gio became disoriented and began to remove his safety harness. The claimant claims that he went over to assist Gio and the two then fell down the slope and over the edge stopping only when the claimant’s coat got caught in his safety line, bringing them to a stop at some unknown point above the roadway. The claimant alleges that he and Gio jumped down to the roadway and Gio asked the claimant not to report the fall to the supervisor for fear of losing his job. The claimant alleges that Gio then walked back up the hill to work and the claimant caught a ride with the flagger who was working on the roadway. The claimant testified that the flagger drove him to the bathroom and then returned him to the hillside where the claimant returned to work. The claimant testified
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that Gio begged him not to report the fall; however, the claimant got a piece of paper from the company van and wrote a note advising his supervisor of the injury and Gio signed it.
The supervisor testified that he never received such a note. The spotter testified that he never left his post when serving as a spotter and he never saw the claimant fall. The flagger testified that if someone had fallen off the hill she absolutely would have seen it, and she never saw anyone fall. The flagger also testified that she never took only one worker at a time to the restroom in contrast to the clamant who testified he rode by himself with the flagger to the restroom after the accident. A fellow employee who had worked with the claimant testified he talked with the claimant frequently and he never heard the claimant say anything about having fallen off the slop or about having been injured. The ALJ found the testimony of the respondent’s witnesses to be credible and persuasive. The ALJ also noted that the claimant was required to fill in a daily time card. On the time card just above the signature line the employee is instructed that if you had an accident/injury see reverse side. On the back of the time card is an accident report which asks the worker to describe the accident or injury. None of the time cards, including the card for November 17, 2006 contained any notation of an accident.
The claimant did not seek medical treatment for his alleged injury until a January 22, 2006 visit to the emergency room, two months after the alleged date of accident. The claimant’s chief complaint at that time was headache. He denied neck pain. The claimant returned to the emergency room on January 26, 2006, with a chief complaint of left-sided neck pain. X-rays and an MRI of the cervical spine showed degenerative disc disease throughout the cervical spine, but no acute injury. The claimant was arrested three weeks after the accident and the medical records from the La Plata County Jail and the Denver Jail contain no mention of any work related injury, although they do mention a variety of other conditions for which the claimant sought treatment.
The ALJ found the claimant’s testimony was not credible. The claimant’s testimony was found to be internally inconsistent, inconsistent with the testimony of other witnesses, and inconsistent with the medical records. The ALJ concluded that the claimant did not sustain a work-related fall or injuries on November 17, 2005 and denied and dismissed the claim for compensation.
The petition to review contains only the general statement that the whole case should be reviewed. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
The claimant had the burden to prove his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-41-301(1)(c),
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C.R.S. 2006; Section 8-43-201 C.R.S. 2006. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and her determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
We have reviewed the record and the ALJ’s findings of fact. The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon her credibility determinations See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). There appears to have been conflicting evidence produced at the hearing. However, the claimant has failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988). Consequently, those findings must be upheld on review.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 1, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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Manuel Rivera, Denver, CO, James Ranches Landscaping Company, Durango, CO, Pinnacol Assurance Harvey D. Flewelling, Esq. 7501 E. Lowry Blvd Denver, CO, Mark A. Simon, Esq., Suite 1020, Denver, CO (For Claimant).
Ruegsegger, Simons, Smith Stern, LLC Richard J. Liby, Esq., Suite 400 Denver, CO 80202, (For Respondents).
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