W.C. No. 4-841-023.Industrial Claim Appeals Office.
November 9, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Peter J. Cannici (ALJ) dated May 27, 2011, that denied and dismissed the claim. We affirm the ALJ’s order.
A hearing was held on the issues of compensability and medical benefits. After hearing the ALJ entered factual findings which for purposes of review can be summarized as follows. On March 9, 2009, the claimant went to his personal physician and was diagnosed with an umbilical hernia and referred for a surgical consultation. However, the claimant’s lump diminished within a few days and the claimant decided not to schedule the appointment with the surgeon.
The claimant worked as a custodian for the employer. The claimant testified that on October 8, 2010, he experienced lower abdominal pain when he lifted an approximately 15 foot long table onto a stack of other tables. The claimant also stated he experienced lower abdominal pain the previous day while pushing gallons of water up a ramp for the employer. The claimant reported his injury to the employer and was referred for medical treatment where he was diagnosed with an umbilical hernia. The treating physicians recommended that the claimant have surgery to repair the umbilical hernia. The respondents denied authorization for the surgery.
Dr. Zuehlsdorff performed an independent medical examination at the request of the respondents. Dr. Zuehlsdorff concluded that the claimant’s hernia was pre-existing and not caused by his employment activities. Specifically, Dr. Zuehlsdorff noted that an umbilical hernia is caused by a defect in the abdominal wall that allows the intestine to
Page 2
protrude and become a visible lump. In Dr. Zuehlsdorff’s opinion, the defect in the abdominal wall was the injury and the protrusion of the intestine was the symptom. According to Dr. Zuehlsdorff, the claimant had a defect in his abdominal wall in March 2009, and it is possible for an umbilical hernia to appear, reduce and reappear. Dr. Zuehlsdorff also stated that the claimant’s weight and lack of muscle tone contributed to the weakening of his abdominal wall. Therefore, Dr. Zuehlsdorff concluded that the claimant’s hernia was a natural progression of the claimant’s pre-existing condition that was first diagnosed in March of 2009.
Relying principally on the opinion of Dr. Zuehlsdorff, the ALJ found that the claimant’s umbilical hernia constitutes a natural progression of a pre-existing condition, and that the claimant’s work activities did not aggravate, accelerate or combine with the pre-existing condition to produce a need for medical treatment. ALJ Order at 4 ¶ 12. Therefore, the ALJ concluded that the claimant failed to establish by a preponderance of the evidence that he sustained a compensable umbilical hernia during the course and scope of his employment on October 8, 2010. ALJ Order at 5 ¶ 6.
The claimant filed a petition to review the ALJ’s order and designated, as part of the record, the transcript from the May 3, 2011, hearing. However, the claimant failed to timely pay for the transcript, and the request for the transcript was stricken by the ALJ on August 2, 2011, and a briefing schedule was issued. The claimant did not file a brief in support of petition to review. However, the respondents filed a brief in opposition.
The claimant’s petition to review contains only general allegations of error derived from § 8-43-301(8), C.R.S. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
However, we have reviewed the order and the record provided and we perceive no error. The ALJ correctly recognized that the claimant had the burden to prove by a preponderance of the evidence that he sustained an injury in the course and scope of his employment. Section 8-43-201, C.R.S. The determination of whether there is a sufficient causal relationship between the claimant’s employment and the injury is generally one of fact, which the ALJ must determine based on the totality of the circumstances Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). We must uphold the ALJ’s determination of this issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.
In the absence of a transcript of the hearing, we must presume the ALJ’s factual findings to be supported by substantial evidence Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). Under these circumstances, we may not disturb the ALJ’s
Page 3
order in this case.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 27, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________________ Brandee DeFalco-Galvin
_______________________________ Kris Sanko
Page 4
RONALD STRASHEIM, 8705 WEST 46TH AVE., WHEAT RIDGE, CO, (Claimant).
CITY COUNTY OF DENVER, Attn: CHRISTIAN LIND, ESQ., C/O: OFFICE OF THE CITY ATTORNEY — LITIGATION SECTION, DENVER, CO, (For Respondents).
CITY COUNTY OF DENVER, Attn: PATRICIA LORMAN, DENVER, CO, (Other Party).
Page 1