W.C. No. 4-636-195.Industrial Claim Appeals Office.
October 19, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated May 17, 2007 that denied medical benefits in the form of back surgery. We affirm.
A hearing was held on the issue of whether a low back surgery recommended for the claimant was reasonable, necessary, and related to the claimant’s compensable injury. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On December 22, 2004, the claimant sustained a low back and knee injury, and on January 20, 2006, Dr. Shogan recommended that the claimant undergo surgery at the L4-5 and L5-S1 levels of his lumbar spine. The claimant had sustained earlier compensable injuries to his low back in 1991 and 2002, both of which had resulted in surgeries being performed. An orthopedic surgeon, Dr. Janssen, examined the claimant several times and reviewed his medical records, including numerous MRI films dating back to 1991. Dr. Janssen stated that the claimant’s recommended surgery was caused by his preexisting spinal condition and not by this compensable injury. The ALJ expressly credited Dr. Janssen’s opinions and found that the surgery was not reasonable and necessary to cure the claimant from the effects of the compensable injury. Accordingly, the ALJ denied the claimant’s request to order the respondents to pay for the surgery.
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The claimant appealed the ALJ’s order. As noted by the respondents, the claimant’s allegations are largely directed toward errors allegedly committed by his former counsel. We have no authority to set aside or modify an order based on such allegations, and they do not provide the basis for relief on appeal. See § 8-43-301(8), C.R.S. 2007. Moreover, insofar as the claimant’s petition to review alleges that the ALJ abused her discretion in permitting certain continuances or making other procedural rulings, the claimant did not raise any such errors to the ALJ. Parties are expected to raise all issues before the ALJ and we may not consider issues raised for the first time on appeal. Cf. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994). The claimant’s failure to file a brief in support of the petition to review renders our review limited. However, insofar as the respondents argue that the claimant’s failure to make specific allegations of error deprives us of jurisdiction to review the order, we reject that argument. Despite the claimant’s failure to specify the alleged errors committed by the ALJ, we nonetheless elect to review the order. See Oxford Chemicals Inc. v. Richardson, 782 P.2d 843
(Colo.App. 1989).
We perceive no basis on which to set aside the ALJ’s order. 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. 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 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). Under this standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
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 her
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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 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.
Finally, the respondents assert that they are entitled to an award of attorney fees under § 8-43-301(14), C.R.S. 2007. The section provides that
The signature of an attorney on a petition to review or brief in support thereof constitutes a certificate by the attorney that such attorney has read the petition or brief; that, to the best of the attorney’s knowledge, information, or belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, cause delay, or unnecessarily increase the cost of litigation.
The statute then provides that if any petition or brief is signed in violation of the section, then reasonable attorney fees and costs “shall” be awarded. In construing a statute our primary objective is to give effect to the intent of the General Assembly in enacting the legislation. E.g., Sigala v. Industrial Claim Appeals Office, 159 P.3d 785 (Colo.App. 2006) certiorari granted
(Colo. May 30, 2007). In doing so we must look first to the statutory language, giving effect if possible to the plain and ordinary meaning of the words used, and we must refrain from reading nonexistent provisions into the statute Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo.App. 2005). We should not depart from the plain meaning of the statute unless it leads to an absurd result. McKinney v. Industrial Claim Appeals Office, 894 P.2d 42 (Colo.App. 1995).
We are compelled to apply the statute as written and its language applies only to “the signature of an attorney.” The plain meaning of the statute here precludes an award of attorney fees or costs and we are bound to apply the statute as written. See Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989) (authority to award attorney fees in workers’ compensation cases is strictly a creature of statute, and no attorney fees may be awarded where no statutory authority exists); Daugherty v. Telecommunications, Inc., W.C. No. 4-269-439 (May 24, 1996).
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IT IS THEREFORE ORDERED that the ALJ’s order dated May 17, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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WALTER STAPLETON, LITTLETON, CO, (Claimant).
UNITED PARCEL SERVICE, Attn: ALISSA HALL/PAUL GETTER, COMMERCE CITY, CO, (Employer).
LIBERTY MUTUAL GROUP, Attn: SANDI GOLDBERG, IRVING, TX, (Insurer).
WEINBERGER SERRUTO PC, Attn: ROBERT A. WEINBERGER, ESQ., DENVER, CO, (For Respondents).