W.C. No. 4-769-745.Industrial Claim Appeals Office.
May 13, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated December 9, 2009 that denied and dismissed the claimant’s claim for compensation. We affirm.
A hearing was held on the issue of whether the claimant had sustained a compensable injury and, if so, whether he was entitled to medical benefits and to temporary total disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant testified that on August 27, 2008, he injured his low back while lifting a bag of syrup to refill a drink dispenser. The claimant testified regarding the pain and other symptoms he experienced and also that he reported the injury to his supervisor. The claimant had sustained a back injury approximately six months earlier in February 2008 and reported to his doctor that he had experienced continued pain from that injury. The ALJ resolved conflicts in the testimony and rejected the claimant’s as not credible. The ALJ credited the testimony of his co-worker that the claimant did not exhibit any signs of injury or pain on the day of the alleged accident and did not state to her that he had been injured. The ALJ also credited the testimony of the claimant’s supervisor contracting the claimant’s testimony that he had reported the injury. The ALJ was also persuaded by video recordings depicting the claimant working for another convenience store and showing the claimant working normally with no evidence of pain or other symptoms restricting his bending, twisting, squatting, and reaching. The ALJ also credited the opinions of Dr. Roth, who examined the claimant and reported that he could find no probable cause for the claimant’s symptoms, which in Dr. Roth’s opinion were
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exaggerated. The ALJ also credited Dr. Roth’s opinion that the claimant sustained no injury on August 27th.
Based upon his factual findings the ALJ concluded that the claimant failed to carry his burden of showing that he sustained a compensable injury in August 2008. Accordingly, he denied the claim.
The claimant appealed the ALJ’s order. The petition to review the order contains only general allegations of error excerpted from § 8-43-301(8), C.R.S. 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).
We have reviewed the record and perceive no reversible error. To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his back injury arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ. In resolving this issue, the ALJ was not required to cite disputed evidence before rejecting it as unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). We are required to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
Because the question whether a claim is compensable is largely factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. § 8-43-304(8), C.R.S.; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences See F.R. Orr Construction v. Rinta, 717
P.2d 965 (Colo. App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Here, 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). The scope of our review under this standard is “exceedingly narrow.” Metro Moving
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Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). Here, as noted, it is rendered more so by the lack of a transcript or a brief in support of the petition to review.
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 and his credibility determinations. 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 prove entitlement to compensation. The ALJ correctly applied the law and did not err in denying the claim. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 9, 2009, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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Curt Kriksciun
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Thomas Schrant
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WALID MOAZ, DENVER, CO, (Claimant).
CONOCO PHILLIPS COMPANY, Attn: GYNONNE SEAT — LEGAL DEPT CLAIMS CTR, C/O: AGENT-CENTRAL USA REGION, BARTLESVILLE, OK, (Employer)
INDEMNITY INSURANCE OF NORTH AMERICA/ESIS, Attn: ANITA FRESQUEZ MONTOYA, C/O: ESIS PORTLAND WC CLAIMS, TAMPA, FL, (Insurer).
CLIFTON MUELLER BOVARNICK, PC, Attn: HOLLY M BARRETT, ESQ., DENVER, CO, (For Respondents).
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