W.C. No. 4-731-227.Industrial Claim Appeals Office.
September 2, 2008.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated March 19, 2008, that denied and dismissed the claimant’s claim for benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The respondent operates an electrical contracting business, which was not a party to the claim. The respondent’s wife is disabled. The respondent sought home-based assistance from certified nursing assistants (CNA) to care for his wife. The clamant is a CNA and the respondent contracted with her and other CNAs to provide care for his wife. The claimant alleged she injured her left shoulder, neck and back on April 24, 2007 while transferring the respondent’s wife from her wheelchair. The ALJ found that the claimant’s story lacked credibility. The ALJ found that it was medically probable that the claimant did not sustain an acute pathology or change in her left shoulder on April 24, 2007, rather the claimant’s left shoulder pathology was chronic and resulted from osteoarthritic changes. Further, balancing the factors in § 8-40-202(2)(b)(II) C.R.S. 2007, the ALJ found that the claimant was engaged in an independent profession while providing services to the respondent’s wife, and was an independent a contractor rather than an employee. Therefore, the ALJ denied and dismissed the claimant’s claim for benefits.
The petition to review contains only general allegations of error, derived from § 8-43-301(8). Moreover, the claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). She has also failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings
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are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Under § 8-43-301(8), C.R.S. 2007 we are precluded from disturbing the 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 findings, the order is not supported by the findings, or the order is not supported by applicable law.
Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). Whether the claimant sustained her burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Id; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Here, we have reviewed the record and the ALJ’s findings of fact and conclusions of law. The ALJ weighed the competing evidence, assessed its probative value, and resolved any issues of the credibility of witnesses. He found that the claimant’s testimony was contradicted by the respondent’s wife and he credited the testimony of the respondent’s wife. The ALJ also credited the respondent’s testimony that the claimant first reported her shoulder injury to him sometime around August 3, 2007. The ALJ credited the testimony of another health care provider for the respondent who stated he saw the claimant carrying a sack of potatoes weighing some 80 to 100 pounds as of July 24, 2007, which was inconsistent with the claimant having sustained an acute shoulder injury prior to July 24, 2007. In the emergency department on August 3, 2007, the claimant only reported a left shoulder problem and denied any injury to her head or neck. The ALJ found no support for the claimant’s claim that she injured her neck. Dr. Wunder opined that the claimant’s osteoarthritis of the left shoulder was likely related to a shoulder injury in 1992. Exhibit D.
On the issue of whether the claimant was an independent contractor, the ALJ made the following findings of fact. The claimant was a licensed professional, did not work exclusively for the respondent, and the claimant chose her own hours and established her own quality standards for her work. The claimant worked under a fixed contract rate which she negotiated and was unrelated to the number of hours she worked. There was no persuasive evidence that the respondent could terminate the claimant’s services for reasons other than failure to perform. The respondent provided neither training nor
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direction in how the claimant provided her services. The respondent paid the claimant personally. The ALJ concluded that the claimant was engaged in an independent profession while providing services to the respondent’s wife and was not an employee of the respondent.
In our view, the ALJ’s findings are sufficient to permit appellate review. The ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, the ALJ’s findings support the conclusion that the claimant failed to prove entitlement to further benefits and compensation. The ALJ correctly applied the law and did not err in denying benefits. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued March 19, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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GAIL SANDUSKY, THORNTON, CO, (Claimant).
ELMER KITZMAN, JR., PLATTEVILLE, CO, (Employer).
RONDA M. CORDOVA, ESQ., C/O: THE LAW OFFICES OF REGINA M. WALSH ADAMS, GREELEY, CO, (For Respondents).
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