W.C. Nos. 4-589-465, 4-646-823, 46-46-825, 4-646-827, 4-646-828, 4-646-829.Industrial Claim Appeals Office.
September 13, 2006
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated March 22, 2006, that dismissed multiple claims for compensation. We affirm.
The order of the ALJ determined that this case involves a number of claims for workers’ compensation benefits. However during cross-examination, the claimant withdrew the claims in W.C. No. 4-646-825 and W.C. No. 4-646-829. W.C. No. 4-5894-65 is a claim for benefits involving numerous injuries the claimant alleges she sustained over the course of her employment with the employer. On cross-examination, the claimant acknowledged that W.C. No. 4-646-828 and W.C. No. 4-646-823 involve allegations that duplicate those made in W.C. No. 4-589-465, and the claimant agreed to merge W.C. No. 4-646-828 and W.C. No. 4-646-823 into W.C. No. 4-589-465 for purposes of adjudication. W.C. No. 4-646-827 is a separate claim concerning injuries the claimant allegedly sustained on October 22, 2002.
In her petition to review the claimant has not challenged these procedural findings. In any event 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) and therefore we adopt the ALJ’s statement considering the status of the multiple claims in this action.
The claimant began working for the employer in 2000 as a sales person and bookkeeper. The claimant quit in January 2003. The claimant testified that during this employment she sustained injuries to her neck, low back, right shoulder, and to both knees, numbness in both hands, and sustained a psychological injury from abusive treatment by the employer
The ALJ made extensive findings regarding the claimant’s medical condition and treatment prior to working for the employer. This history contains numerous complaints including problems with the claimant’s neck, hands, back, shoulders, forearm, and leg pain. The claimant had received thirty years of chiropractic treatment. The claimant has a history of being been depressed for years and a history of substance abuse.
The claimant suffered a motor vehicle accident (MVA) in 1999, less than one year before the claimant began employment with the employer. The claimant testified that this was a minor accident. However, Dr. Criste, D.C., wrote a letter to the personal injury protection carrier involved in the 1999 MVA reporting the claimant’s symptoms of back pain, neck pain, shoulder pain and knee pain, which were 100% related to the MVA. Dr. Gronseth evaluated the claimant on June 5, 2003 and stated that the claimant’s conditions were chronic in nature and pre-existed her employment with the employer. One of the claimant’s treating physicians, Dr. Williams, indicated that he did not disagree with Dr. Gronseth’s opinions. Dr. Gutterman opined that he saw no indication that the claimant was experiencing any psychiatric or psychological disorder as it would relate to her employment.
On the claim bearing the number W.C. 4-589-465 the claimant alleged physical injuries to her neck, low back, right shoulder, both hands and both knees caused by specific incidents at work and by heavy lifting over time. The ALJ concluded that the claimant failed to prove it was more probably true than not that the duties and conditions of her employment caused injury, or aggravated or accelerated any pre-existing condition. The ALJ noted that most of the conditions for which she seeks compensation predated her employment and were the subject of longstanding treatment. The ALJ credited the opinions of Dr. Gronseth and Dr. Williams.
On the mental impairment claim the ALJ found that the claimant failed to produce the opinion of a licensed physician or psychologist that the claimant sustained a recognized permanent disability and that the disability resulted from a psychologically traumatic event traumatic event as required by §8-43-301(2)(a), C.R.S. 2006. The ALJ also noted Dr. Gutterman’s opinion that the employment did not cause any mental disorder.
The claim bearing the W.C. No. 4-646-827 involves the claimant’s allegation that some flashing material fell and nearly struck her. The ALJ found that the claimant was not struck and sustained no physical injury. The ALJ determined that the claimant failed to prove that the incident caused any need for treatment or caused any disability. The ALJ noted that no benefits flow to the victim of an industrial accident unless the accident results in a compensable injury and a compensable industrial accident is one that results in an injury requiring medical treatment or causing disability.
The ALJ dismissed the claim for benefits in W.C. No. 4-589-465
and the claims merged therein, W.C. No. 4-646-828 and W.C. No. 4-646-823. The ALJ dismissed the claim for benefits in W.C. No. 4-646-827. The claims for benefits in W.C. No. 4-646-825 and W.C. No. 4-646-829 were considered by the ALJ to be withdrawn.
Initially, we note that the claimant has attached reports from a physical therapist to her petition to review. Our review is limited to the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). Therefore, we have not considered the documents attached the petition to review. See Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171
Colo. App. 1988).
On review the claimant argues the hearing was unfair because her witnesses were not called, the employer had lied about her and she was on pain medication at the time of the hearing. These contentions are essentially the same as the ones made by the claimant in motions for a continuance, for mistrial and to submit post-hearing evidence filed by the claimant.
The ALJ, in a procedural order dated March 22, 2006, determined after listening to the claimant’s testimony that the claimant was not so influenced by any medication that she could not understand the questions put to her, answer them intelligently, and participate meaningfully in the prosecution of her claim. The ALJ found that the request for a mistrial simply restated the claimant’s request for a continuance. The ALJ determined that the claimant had not shown good cause for her request to submit additional evidence. The ALJ found that the claimant had more than two years to gather evidence and medical opinions to support her claim and failed to explain how the exercise of due diligence would not have allowed the claimant to obtain and submit this and other evidence at the time of hearing. The ALJ considered the fact that the hearing was continued in November 2005 and again on January 5, 2006 at the claimant’s request, and denied the claimant’s latest request for a continuance and to submit post-hearing evidence. We perceive no basis on which to disturb the ALJ’s determination.
The claimant in a workers’ compensation claim is expected to be prepared to present all of his evidence at the appointed hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). Further, the claimant is presumed to know applicable statutes and is required to act accordingly. Paul v. Industrial Commission, 632 P.2d 638 (Colo.App. 1981). Therefore, the claimant’s ignorance of the applicable procedural rules does not afford grounds for appellate relief. See Manka v. Martin, 200 Colo. 160, 614 P.2d 875 (1980) (pro se party is held to the same requirements as an attorney).
In any case, the party asserting error has the burden to present a record sufficient to prove the error. If the appealing party fails to provide an adequate record, the correctness of the ALJ’s rulings must be presumed. See People v. Lawrence, 55 P.3d 155 (Colo.App. 2001). In the present case no hearing transcript has been provided. Consequently, in the absence of a transcript, the record is insufficient to support the claimant’s contention that the ALJ erroneously denied her the opportunity to present witnesses and medical records, and in not granting another continuance.
Moreover, § 8-43-207(1)(j), C.R.S. 2006, permits an ALJ to “adjourn any hearing to a later date for the taking of additional evidence” when “good cause” is shown. Of course, the ALJ is given wide discretion in the conduct of evidentiary proceedings, including the decision of whether to grant a continuance or otherwise permit the taking of post-hearing evidence. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
An abuse of discretion is not shown unless, considering the totality of circumstances, the ALJ’s determination is beyond the bounds of reason, as where it is contrary to law or unsupported by the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). In determining whether to grant a continuance or permit the taking of post-hearing evidence, an ALJ may consider various factors including whether a party has exercised due diligence to obtain the evidence prior to the hearing, whether the evidence might be outcome determinative, and the potential inconvenience and expense to the opposing party if additional proceedings are permitted. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); IPMC Transportation Co. v. Industrial Claim Appeals Office, supra; Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987). The ALJ’s decision must also consider the parties’ due process rights, including the right to present evidence and confront adverse evidence. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
The ALJ did consider the correct factors in ruling on this issue. The ALJ found that to allow additional evidence could impose substantial inconvenience and cost upon the respondents and that the claimant was given ample opportunity to testify over the course of two hearings. The ALJ further found that the claimant had failed to demonstrate the exercise of due diligence to obtain and produce the evidence at the time of the hearing. Under the circumstances of this case, we cannot state that the ALJ’s decision not to continue the matter for the taking of additional evidence or consider the evidence submitted after the hearing exceeded the bounds of reason.
On the issue of compensability the claimant had the burden to prove that her alleged disability was proximately caused by an injury or an occupational arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2006. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his 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. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). The medical reports from Dr. Criste (Exhibit D), Dr. Gutterman (Exhibit C), Dr. Williams (Exhibit B), and Dr. Gronseth (Exhibit A), support the ALJ’s finding that the claimant suffered no actual injury cause by the employment and that there was no aggravation or acceleration of her pre-existing conditions.
Under § 8-43-301(8), 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. 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. 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 demonstrate by a preponderance of the evidence that she sustained any injuries proximately caused by her employment. The ALJ correctly applied the law and did not err in denying the claims for 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 22, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
Shirley Swanson, Steamboat Springs, CO, (Pro Se).
Richard P. Henry, Steamboat Stoveworks, Steamboat Springs, CO, Harvey D. Flewelling, Pinnacol Assurance, Denver, CO, Sean Knight, Esq., Denver, CO, (For Respondents).