W.C. No. 4-774-831.Industrial Claim Appeals Office.
January 19, 2010.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated August 20, 2009, that denied and dismissed the claim for workers’ compensation benefits. We affirm.
The employer operates a mechanical contracting business, which involves custom fabrication of structural steel and pipe. The claimant worked as a welder/fabricator. The claimant filed a claim alleging he sustained a lower back injury from an occupational exposure to repetitive lifting, twisting, bending and climbing while working as a welder. The ALJ found that the claimant had failed to prove by a preponderance of the evidence that he sustained a compensable occupational disease type injury.
The claimant appeals. However, the petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2009. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
Section 8-40-201(14), C.R.S. 2009 defines an occupational disease as follows:
“Occupational disease” means a disease which results directly from the employment or conditions under which the work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can
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be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside the employment.
The question of whether the claimant proved the conditions of employment caused or contributed to a disease is a question of fact for determination by the ALJ. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). Moreover, if an industrial injury aggravates or accelerates a preexisting condition so as to cause a need for treatment, the treatment is compensable Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo. App. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990); Seifried v. Industrial Commission, 736 P.2d 1262 (Colo. App. 1986). Under § 8-40-201(14), C.R.S. 2009 the claimant is not required to prove the conditions of the employment were the sole cause of the disease. Rather, it is sufficient if the claimant proves the hazards of employment caused, intensified, or aggravated — to some reasonable degree — the disability for which compensation is sought Anderson v. Brinkhoff 859 P.2d 819, 824 (Colo. 1993).
Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2009 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. Thus, the scope of our review under the substantial evidence standard is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). Where conflicting expert opinion is presented, it is solely for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.2d. 1182 (Colo. App. 1990).
The record contains several transcripts of depositions and exhibits. However, we note in particular that at the June 16, 2009 hearing, testimony was presented by the claimant and witnesses for the employer. No transcript of that hearing is in the record. Because the claimant has failed to provide a transcript of the hearing, 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).
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The ALJ made the following findings of fact. In 2008, the claimant went on a camping trip over the Labor Day Weekend. The claimant returned to work on September 2, 2008 and told his supervisor that he was having back pain and needed to leave work early to see his physician. The supervisor testified that when the claimant return to work after his camping trip he reported having back pain from driving on a four-wheel-drive trail followed by sleeping on an air mattress. The claimant denied making this statement. A fellow employee testified that the claimant told him that he had hurt his back over the prior weekend while on a camping trip. The ALJ credited the supervisor’s testimony that the claimant offered a non-work-related explanation attributing his back pain to camping over the Labor Day weekend. The claimant informed Dr. Barron that his job activities involved the following:
He had to flip I-beams with a crow bar which weighed hundreds of thousands of pounds repetitively all day long. He had to repetitively pick up steel pipe to make handrails weighing two pounds to 100 pounds all day long. After fabricating the handrails weighing up to 350 pounds, he had to place the products on carts with a coworker. There was not one specific injury. He told me that the repetitive nature of his job caused the low back pain.
Exhibit B at 19.
However, the ALJ credited the testimony of the claimant’s supervisor that the claimant worked very little on handrails and I-beams. The ALJ reviewed time sheets filled out by the claimant and determined that 89.5 percent of the time the claimant was working on projects he never identified as potential cause of an occupational disease in his low back. The ALJ found the claimant’s testimony that he worked the majority of his time on I-beams and handrails to be inconsistent with the time sheets he filled out himself.
Dr. Barron reviewed video evidence of the claimant’s job activities and opined that the work was of insufficient magnitude, duration, or frequency to cause or aggravate the claimant’s underlying and preexisting degenerative disk disease of the lumbar spine. Exhibit B; Exhibit I; Barron Depo. at 13-14. Dr. Barron further opined that the claimant’s work activity lacked evidence of sustained, forceful lifting, bending, or twisting to cause the development of lower back symptoms. Exhibit B; Barron Depo. at 13-14. Dr. Roth testified that the claimant’s lower back anatomy was typical for his age, irrespective of a lifetime of working as a welder. Exhibit A. Dr. Roth opined that the degenerative anatomy of the claimant’s spine was a result of the aging of the spine and incidental and unrelated to his lifetime work exposures. Exhibit A; Roth Depo. at 7, 23-25. The ALJ found Dr. Roth’s testimony was persuasive and supported by the persuasive testimony of Dr. Barron. The ALJ, crediting the medical opinions of Dr. Roth and Dr.
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Barron, determined that the claimant’s onset of symptoms was proximately caused by the natural progression of his underlying degenerative disk disease process, and not by work activities.
The ALJ’s findings of fact are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his 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). We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 20, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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John D. Baird
____________________________________
Thomas Schrant
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ROBERT REDMAN, ELIZABETH, CO, (Claimant).
R.K. MECHANICAL, INC., DENVER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: DAVID L. SMITH, ESQ., (For Respondents).
PINNACOL ASSURANCE, Attn: TAMERIA STUKES, DENVER, CO, (Other Party).
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