W.C. No. 4-783-232.Industrial Claim Appeals Office.
December 28, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated September 2, 2009, that denied and dismissed his claim for benefits. We affirm.
The claimant worked for the employer as a mechanic and technician. The claimant testified that on January 17, 2009 he was pulling himself into a truck and developed a hernia. The claimant also testified that he may have aggravated his hernia when he was lifting heavy objects at work. The claimant filed a written report that did not mention lifting heavy objects or repeatedly having to lift himself into a truck on the date of his injury; rather the claimant stated the hernia just happened. The ALJ credited the written report over the claimant’s testimony at hearing. Dr. Henke noted that the claimant did not report any trauma leading to his hernia in his written report. Dr. Henke opined that usually when a hernia occurs as a result of trauma, the person knows that it has happened. Dr. Henke opined, based on his review of the medical records and the claimant’s written statement, that the claimant’s hernia was not related to his work. The ALJ determined that the claimant had failed to show that it was more probably true than not that his hernia was caused, aggravated or accelerated by his work duties with the employer.
The petition to review filed by the claimant contains statements which were not matters of record, such as assertions attributed to the Mayo Clinic. However, our review is restricted to the record before the ALJ, and the factual assertions made on appeal by the claimant may not substitute for evidence, which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995); Subsequent Injury Fund v.
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Gallegos, 746 P. 2d 71 (Colo. App. 1987); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988) See Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo. App. 1995).
The claimant contends the ALJ erred by ignoring the report of Dr. O’Dell. We note that the ALJ did make findings of fact related to the operative report of Dr. O’Dell. Further Dr. O’Dell’s report does not on its face opine that the claimant’s umbilical hernia was related to his employment, rather as noted by the ALJ the report contains findings of chronic change but no evidence of any incarcerated bowel or compromised bowel. Exhibit B. In any event, the existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970).
The claimant in his petition to review contends the medical opinion of the expert selected by the respondents should not be given credence. However, we may not interfere with the ALJ’s assessment of an expert witness’s testimony because the weight to be accorded the testimony is a matter exclusively within the discretion of the ALJ as fact-finder. Rockwell Int’l v. Turnbull, 802 P.2d 1182, 1183 (Colo. App. 1990).
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his hernia arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); 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. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). 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. 2009. 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).
However, 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). 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 his credibility
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determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo. App. 1992). The findings support the conclusion that the claimant failed to prove entitlement to benefits. In our view, the ALJ correctly applied the law. We have reviewed the claimant’s additional arguments and they do not alter our conclusions. We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 2, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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CRAIG THOMAS CARTON, PALISADE, CO, (Claimant) TRANSWEST, C/O: TRANSWEST, INC., COMMERCE CITY, CO, (Employer).
THE HARTFORD, Attn: DIANA GELBART, HOUSTON, TX, (Insurer) THE LAW OFFICES OF SCOTT TESSMER, Attn: ANGELA K WOOD, ESQ., ENGLEWOOD, CO, (For Respondents).