W.C. No. 4-583-118.Industrial Claim Appeals Office.
August 12, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied the claim for benefits. The claimant contends the ALJ’s finding that the claimant failed to prove an injury arising out of and in the course of employment represents an improper application of the burden of proof and is not supported by substantial evidence. The claimant also argues the ALJ erred in excluding certain medical reports. We affirm.
The claimant, a cook, testified that he injured his back on May 25, 2003, while lifting and dumping pails containing five gallons of water and lifting heavy cases of meat. The claimant testified that he did not recognize that he sustained the injury until the following day when he awakened with low back and right leg pain. In September 2003, an MRI revealed a herniated disc herniation at L3-L4 and a disc protrusion at L4-L5.
However, the ALJ found the claimant failed to prove the claimant’s back condition and associated symptoms were caused by an injury arising out of and in the course of the employment. In support, the ALJ found the claimant had a long history of preexisting back pain and pathology which included spina bifida, a deformed right hip, and prior disc herniations at the same levels mentioned in the September 2003 MRI. Crediting the testimony of the claimant’s supervisor, the ALJ also found the claimant’s duties on May 25 did not include lifting pails of water and cases of meat. Finally, the ALJ resolved conflicts in the evidence and found the claimant did not report any work-related injury until June 22, 2003, despite posted notices describing the duty to immediately report work-related injuries.
I.
On review, the claimant contends the ALJ misapplied the burden of proof and that the evidence does not support the findings of fact. The claimant cites the testimony of some witnesses which support his theory of the case, contends the ALJ should not have credited the testimony of the respondents’ witnesses, and argues the medical records support his position. We perceive no error.
The claimant was required to prove, by a preponderance of the evidence, that the injury for which he seeks compensation arose out of and in the course of the employment. Section 8-41-301(1)(c), C.R.S. 2003; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844
(Colo.App. 2000). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Faulkner v. Industrial Claim Appeals Office, supra.
The substantial evidence standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The ALJ need not make findings concerning every piece of evidence, and evidence not mentioned is presumed to have been rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). The mere fact that some evidence would support a result different from that reached by the ALJ affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Finally, the claimant’s assertion notwithstanding, there is no rule of law which requires the ALJ to resolve “all reasonable doubts” in favor of a finding of compensability. Section 8-43-201, C.R.S. 2003; City of Boulder v. Streeb, 706 P.2d 786, 789 (Colo. 1985).
Here, there is substantial evidence to support the ALJ’s finding that the claimant failed to prove a compensable injury. As the ALJ recognized, there is both medical and lay evidence demonstrating that the claimant had a long history of pre-injury back pain which required substantial medical treatment. The testimony of the claimant’s supervisor supported the ALJ’s finding that the claimant was not required to lift pails of water or cases of meat on May 25, as he testified. Further, the ALJ cited reasons to discredit the claimant’s testimony, including its inconsistency with the testimony of several coworkers concerning the date the injury was reported and the claimant’s significant financial problems at the time of the alleged injury. Although the evidence was subject to conflicting inferences, we cannot say the ALJ’s findings are unsupported by substantial evidence.
We disagree with the claimant’s assertion that the supervisor’s testimony was inherently inconsistent. She testified that she was aware the claimant had back problems even before the injury. However, she did not know he was claiming that the problems were work-related until the injury report was filed in June. Further, the supervisor testified that she required the claimant to present a work release from a doctor because she did not want the employer to be responsible for additional injury if the claimant returned to work prematurely.
Neither was there any error in the ALJ’s consideration of the claimant’s delay in reporting the alleged injury. The claimant testified that he reported the injury to the owner and other coworkers on May 26. The respondents were entitled to rebut this assertion, as they did, by the presentation of witnesses to establish that no report of a work-related condition occurred until June.
We have considered the claimant’s remaining argument as they pertain to the ALJ’s findings of fact. These arguments concern the ALJ’s credibility determinations and the inferences which he drew from the record. There is no basis to interfere with these findings or the inferences drawn by the ALJ. Wilson v. Industrial Claim Appeals Office, supra.
II.
The claimant also asserts, without making any argument or citing any authority, that the ALJ erred in excluding certain medical reports. However, the ALJ found these reports were not provided to respondents’ counsel 20 days before the hearing, and the claimant failed to show good cause for admitting them. Rule of Procedure VIII (I)(1),7 Code Colo. Reg. 1101-3 at 30. We perceive no abuse of discretion in the ALJ’s ruling.
The claimant failed to make an offer of proof concerning the contents of the two excluded medical records, and therefore, it is impossible to ascertain whether or not they could have been “outcome determinative.” Moreover, the respondents objected to the presentation of the documents arguing they were not afforded a reasonable opportunity to depose the physician or obtain evidence in response. Finally, it was the claimant who applied for the hearing and created the time difficulties which resulted in the late receipt of the medical reports, and the claimant did not seek a continuance despite the unavailability of the reports. In the absence of any specific argument by the claimant, we cannot say the ALJ abused his discretion in excluding the reports. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 12, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Kevin M. Vernon, Delta, CO, Delta Fireside Inn, c/o Peter Schoop, Delta Restaurant Corporation, Delta, CO, California Indemnity Insurance Co., c/o Melissa Carter, Claims Examiner, Denver, CO, Leslie J. Castro, Esq., Grand Junction, CO, for Claimant.
M. Frances McCracken, Esq., Grand Junction, CO, (For Respondents).