W.C. No. 4-692-793.Industrial Claim Appeals Office.
May 9, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated January 9, 2007 that dismissed the claimant’s claim for workers’ compensation benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant was employed as an “Arrow machine” operator. The claimant testified he sustained a lower back injury on July 12, 2006 while loading the Arrow machine, which entails lifting a mandrill to slide a new roll of tape onto the mandrill. The medical records reflect that the claimant’s medical providers noted no objective findings regarding his subjective complaint of lower back pain; rather, the medical records reflect that the claimant exhibited self-limiting behavior, dramatic complaints of pain and possible delayed recovery and secondary gain. The claimant provided inconsistent accounts of how he injured himself. Although the claimant testified that he injured himself while lifting a very heavy metal bar, he reported to at least one treatment provider that he was carrying the bar while twisting his torso when he injured himself. The claimant reported that the bar weighted 700 pounds but a supervisor credibly testified that the bar weighted less than 70 pounds and the claimant was only required to lift the bar four to six inches every four to five hours. The claimant testified that the injury caused significant pain however the claimant did not report the injury to his supervisor at the time of the alleged incident, but continued to work for the rest of the day. The claimant testified that he spoke only a little English but the operations manager credibly testified and the records reflect that the
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claimant was able to communicate during the application process, fill out paper work in English and communicate with at least one treatment provider without the assistance of an interpreter. The claimant has resided in the United States for approximately 22 years and while testifying the claimant frequently responded to questions asked in English before the interpreter translated the question into Spanish.
The ALJ concluded that the claimant had failed to prove by a preponderance of the evidence that he sustained a work-related injury on July 12, 2006. The ALJ therefore concluded that the claimant was not entitled to workers’ compensation benefits.
The petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2006. 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).
The claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2006; Section 8-43-201 C.R.S. 2006. 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. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003).
Although there was conflicting evidence produced at the hearing, the ALJ’s findings are amply supported by substantial evidence. The claimant reported to Dr. Danahey that the bar he lifted weighed 700 pounds, which the ALJ determined was not credible. Exhibit A at 1. The operations manger testified that the weight of the object the claimant lifted was less than 70 pounds, probably more liked 45 to 50. Tr. at 39. Dr. Mobus recounted that the claimant originally estimated the load he was injured lifting to be 700 pounds but when it was pointed out this was improbable he stated it possibly weighed 100-200 pounds. Exhibit F at 1.
A July 17, 2006 report from Dr. Mulligan noted that, although there were minimal
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physical findings, and the claimant moved smoothly on and off the exam table without visible pain behaviors, the claimant nonetheless was very dramatic in his pain complaints with light palpation. Exhibit D. Dr. Mulligan raised the possibility of secondary gain issues related to the issue of the claimant’s return to work. Exhibit D. Dr. Danahey noted the potential for delayed recover in the claimant’s case. Exhibit E.
We have reviewed the record and the ALJ’s findings of fact. The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon her credibility determinations See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). As noted, the ALJ is solely responsible for weighing the evidence and determining the credibility of the witnesses, and we may not usurp that function by reweighing the evidence and drawing inferences contrary to those reached by the ALJ. Under the circumstances of this case we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 9, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Jorge Ventocilla, 2040 S. Federal Boulevard, Denver CO, Bron Tapes, Inc., Bobbi Gerry 875 W. Elsworth Denver, CO, Wausau Insurance Company Laura Rayburn, Kansas City, KS, Clisham, Satriana Biscan LLC, Patricia J. Clisham Esq., Denver CO, (For Respondents).
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