W.C. No. 4-647-418.Industrial Claim Appeals Office.
October 12, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated May 24, 2006, that denied the claim for workers’ compensation benefits. We affirm.
In an order dated May 24, 2006, the ALJ concluded that the claimant failed to prove he sustained an injury arising out of and in the course of employment. The claimant appealed, but failed to file his brief in support of his petition to review within the time provided by statute and we have therefore not considered it. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986). The petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2006.
The ALJ’s pertinent findings of fact are as follows. The claimant worked for the employer for 13 years as an engineer and alleged an occupation disease with a date of onset of January 9, 2004. The basis for the alleged occupational disease was exposure to mold at a building in the west portal of the Eisenhower Tunnel. The claimant raised concerns over mold with his employer who arranged a series of tests to be performed by an industrial hygienist. The industrial hygienist expressed the opinion that the mold he detected in the Eisenhower Tunnel office was “de minimus level as far as the national guidelines” and any exposure from these minimal levels of mold was inconsequential. The ALJ after reviewing the medical record found that there was insufficient persuasive medical evidence presented to support a finding of a causal connection between the mold in the Eisenhower Tunnel Office and the claimant’s multiple illnesses.
The claimant has the burden of proof to establish that the conditions of the employment were a direct and proximate cause of the alleged occupational disease. WalMart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). The question of whether the claimant has met the initial burden to prove causation is one of fact for the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Although causation need not be proven by expert medical evidence, where such evidence is presented it is for the ALJ to determine its weight and credibility. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Further, the ALJ need not make findings concerning every piece of evidence, provided there are findings demonstrating the evidence found dispositive by the ALJ. Evidence not mentioned is considered to have been rejected Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The record contains transcripts of depositions taken of various witnesses. However, the claimant has failed to provide a transcript of the hearings held on January 30, 2006 and May 8, 2006, 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 ALJ recognized that the claimant had the burden of proof and found that the claimant had not carried that burden in part because the ALJ credited the opinions of Dr. Plotkin and Dr. Orent as credible and persuasive. Dr. Orent expressed the opinion that the objective data did not support a conclusion that mold in the patient’s workplace had any relationship to his symptoms. Exhibit A at 8. Dr. Orent also testified that none of the test results relating to the claimant supported the presence of an allergic reaction to mold. Orent Depo. at 27. Dr. Plotkin testified that in his opinion there was nothing in the blood work or the antibody testing that indicated the claimant was allergic to mold or fungus. Plotkin Depo. at 33. Under theses circumstances, we perceive no basis on which to interfere with the ALJ’s findings.
The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002. The report of Dr. Louder and her testimony is evidence which, if credited, might support a contrary determination. However, this does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo. App 1981.
IT IS THEREFORE ORDERED that that the order dated May 24, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ Curt Kriksciun ___________________________________ Thomas Schrant
Michael Voxakis, Silverthorne, CO, Harvey D. Flewelling, Esq., Pinnacol Assurance, Denver, CO, (For Respondents).
Paul Feld, Esq., Ritsema Lyon, P.C., Colorado Department of Transportation, Denver, CO, (For Respondents).