W.C. No. 4-603-805.Industrial Claim Appeals Office.
August 16, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated February 7, 2006, that denied the claimant’s claim for compensation. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant worked for the employer for approximately nine years as a barista preparing coffee drinks and performing cashiering duties. In 2003 the claimant complained to her private physician Dr. Sachtleben, of pain in her knee and of diffuse myalgias in the upper and lower extremities, as well as her neck. Dr. Sachtleben stated that the claimant probably had fibromyalgia and the claimant continued to treat on an ongoing basis for fibromyalgia complaints. Dr. Sachtleben referred the claimant to Dr. Corbett who found the claimant had possible early rheumatoid arthritis in addition to fibromyalgia.
In 2004 the claimant saw Dr. Schober, who had taken over for Dr. Sachtleben after the latter left the clinic. Dr. Schober expressed the opinion that the pain in the claimant’s arms, upper back and neck was due to the repetitive work activities involved in operating the espresso machine to dispense beverages. The claimant reported to her supervisor that she had suffered a work injury and was directed by the insurer to see Dr. Boulder. Dr. Boulder diagnosed fibromyalgia that was not work-related.
Dr. Schober referred the claimant to Dr. Stockelman, who is an orthopedist. Dr. Stockelman felt that the diagnosis of fibromyalgia might be correct but attempted to treat the claimant’s chief complaint, which involved her right shoulder, by injecting cortisone. The claimant received no relief from the shoulder injections. On June 30, 2004 Dr. Stockelman released the claimant with no restrictions and no impairment related to her shoulder condition.
In May 2005 the claimant’s attorney wrote to Dr. Stockelman to request that he change some of the language in his 2004 letter about causation. On May 25, 2005, Dr. Stockelman wrote a letter that indicated that the claimant’s right shoulder pain was probably due to work.
Dr. Reichhardt performed an independent medical examination and concluded that the claimant had always suffered from fibromyalgia, and that her work as a barista did not cause, aggravate, or accelerate the fibromyalgia. He also concluded that the claimant did not suffer from impingement syndrome or bursitis of her shoulder related to her work duties as a barista. Dr. Reichhardt noted that the claimant did not actually suffer from bursitis, because her symptoms failed to improve either during a break from work in 2003 or after steroid injections into the bursal area. Dr. Reichhardt also noted that the claimant’s symptoms returned after surgery, indicating that they were not caused by bursitis. In his testimony at the hearing, Dr. Reichhardt noted that the inflamed bursal tissue removed during the surgery could be caused by mechanical irritation, but it could also be caused by rheumatoid arthritis. The claimant reported bilateral shoulder pain, even though she reported primarily using her right arm as a barista. The ALJ found that all of theses factors weighed against the conclusion that the claimant suffered right shoulder bursitis due to her work as a barista.
The ALJ concluded that the claimant did suffer from fibromyalgia, but that her work as a barista did not cause or aggravate the condition. The ALJ found the opinions of Dr. Reichhardt were persuasive and credible. The ALJ concluded that the claimant had failed to prove by a preponderance of the evidence that she suffered an occupational disease of right shoulder bursitis resulting directly from the employment or conditions under which work was performed and following as a natural incident of the work.
There are two specific assertions of error contained in the claimant’s petition to review. The claimant first asserts that the ALJ’s finding that Dr. Reichhardt opined that the claimant did not suffer from bursitis is contrary to his testimony. See
Findings of Fact, Conclusions of Law, and Order at 5 ¶ 24.
The record does not contain a transcript of Dr. Reichhardt’s testimony. However, the record does contain his report. Exhibit AV. In that report Dr. Reichhardt stated that his diagnosis for the claimant was fibromyalgia and possibly rheumatoid arthritis. In his report he further stated that the claimant did not suffer an occupational disease, specifically in regards to shoulder bursitis. Exhibit AV at. 91. The essential finding of the ALJ was that in Dr. Reichhardt’s opinion the claimant did not suffer a bursitis due to her work as a barista. This determination is supported by substantial evidence in the record.
In any event as a general matter, we must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Further, the appealing party bears the responsibility to produce a record sufficient to demonstrate error. Fleet v. Zwick, 944 P.2d 480
(Colo.App. 1999). The absence of a transcript precludes us from determining that any error occurred in the ALJ’s findings made regarding the testimony of Dr. Reichhardt.
Next the claimant asserts that the ALJ erred in determining that the claimant’s attorney asked Dr. Stockelman to change some of his language about causation. See Findings of Fact, Conclusions of Law, and Order at 5 ¶ 23. The claimant argues that this finding is not supported by the evidence. In a report dictated 5/13/2005 Dr. Stockelman stated that:
The patient presents today for a legal request. Her lawyer has suggested that I change some of the wording in my previous letter, as it was felt it may be somewhat misleading as to my true opinion. I have asked that the lawyer provide to me a written request for the changes he would like and why. Certainly I do feel that the patient’s problems are work-related, she certainly is adamant about it.
Exhibit AT.
The record therefore contains substantial evidence supporting the factual findings relevant to the ALJ’s determination regarding the request made to Dr. Stockelman for change of language. Moreover, where, as here, there is no transcript, we must assume the ALJ’s findings are supported by the record. Nova v. Industrial Claim Appeals Office, supra. The ALJ’s order is supported by the record and we perceive no error in the ALJ’s order.
Nor are we otherwise persuaded that the ALJ committed reversible error. 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 his 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’s findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, the ALJ’s findings are amply supported by substantial evidence in the record and the findings support the conclusion that the claimant failed to prove entitlement to 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 February 7, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
___________________________________ Thomas Schrant
Rosanna Smith, Colorado Springs, CO, Sodexho, Inc., Greg Soukup, Colorado Springs, CO, Insurance Company of the State of Pennsylvania, c/o Crawford Company, Patrick Reynolds, Englewood, CO, Steven R. Waldman, Esq., Colorado Springs, CO, (For Claimant).
Ritsema Lyon, Carol A. Finley, Esq., Colorado Springs, Co, (For Respondents)