W.C. No. 4-664-984.Industrial Claim Appeals Office.
September 7, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) dated April 28, 2006 that denied the claim for compensation. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant’s work involved handling luggage, mail and freight as well as performing other duties on the ramp, deicing airplanes and cleaning the interior of airplanes. The claimant performed these duties for several years. In June of 2002 the claimant became the Operations Manager. In this position his main duties were communications, phone work, some keyboarding, weighing items, flagging and updating flight screens. He did perform some repetitive lifting but it was less than half of what he had been doing.
In April of 2005 the claimant filed a claim for a work-related back injury. The claimant was placed on work restrictions and the employer accommodated these by taking the claimant off of ramp work completely. The claimant was no longer required to perform lifting at work. The claimant made no mention of left shoulder pain during treatment for the back condition.
The claimant began to feel pain in his left shoulder in July 2005. He reported his left shoulder pain as work-related on September 29, 2005. The claimant was seen by Dr. Artist who opined that it was less likely that the claimant’s job duties caused the left shoulder pain if he had not been performing ramp work for a significant period of time before the pain began. It was thought by Dr. Artist that it was just as likely that the claimant’s ranching work at home could have caused shoulder pain. Exhibit Q at 21.
The ALJ concluded that it was unlikely that the repetitive lifting of heavy luggage and freight caused his left shoulder pain because he performed less than half of the lifting of a regular ramp worker for over three years before he reported left shoulder pain, and he performed no lifting at all at work for five months before he reported the pain. The ALJ concluded that the lifting at work and the left shoulder pain were not causally connected. The ALJ noted that the claimant bears the burden of proof that his left shoulder condition was caused by his work activities, and insufficient persuasive evidence had been presented to demonstrate that it was more likely than not that his work activities caused the shoulder condition. Therefore the ALJ dismissed the claim.
The claimant appealed. The petition to review contains no specific allegations of error, but rather states simply that the claimant was not represented by legal counsel and there are a number of unnamed witnesses he would like to present.
The claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986). The claimant has also 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).
The claimant had the burden to prove that his alleged disability was proximately caused by an injury or an occupational arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2005. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and her 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).
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. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807
(Colo.App. 2001). 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). Moreover, the ALJ’s order is sufficient for purposes of review if the legal and factual bases of the order are apparent from the findings of fact and conclusions of law. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The medical reports from Dr. Artist, Dr. Odom and Dr. Ghiselli support the ALJ’s finding that the claimant made no mention of left shoulder pain during treatment for the back condition. Exhibits A through K. The medical report by Dr. Artist expressing the opinion that it was less likely that handling bags caused the shoulder claim if the claimant had not been handling bags in the last few months prior to the shoulder claim constitutes substantial evidence supporting the ALJ’s order. Exhibit Q at 21.
The claimant generally contends at the hearing she had no legal representation and would now like to present the testimony of certain witnesses to be named at a later time. Due process of law requires that the parties be afforded an opportunity to confront adverse witnesses and present evidence and argument in support of their position. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). There is nothing in the petition to review nor do we see anything in the record to demonstrate this opportunity was not afforded to the claimant. A pro se claimant is presumed to know applicable statutes and is required to act accordingly. Paul v. Industrial Commission, 632 P.2d 638
(Colo.App. 1981). The petition to review contains no statement of a basis for an additional hearing to present new evidence from these witnesses nor why this evidence could have been presented at the prior hearing through the exercise of due diligence. Se Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808 (1969). The claimant’s contentions do not afford us grounds to grant appellate relief.
Under § 8-43-301(8), C.R.S. 2005, 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 that it is more likely than not that his work activities caused the shoulder condition. The ALJ correctly applied the law and did not err in denying the claim 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 April 28, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
Daniel D. Van Beek, Strausburg, CO, (Pro Se).
Deb Etienne, Northwest Airlines, Inc., St. Paul, MN, Kathryn Kelton, Liberty Mutual Insurance Company, Irving, TX, Patricia Jean Clisham Esq., Denver, CO, (For Respondents)