MTR. OF TERWILLIGER v. DOVE CREEK IMPLMT., W.C. No. 4-790-384 (12/10/2010)


IN THE MATTER OF THE CLAIM OF BELINDA TERWILLIGER, Claimant, v. DOVE CREEK IMPLEMENT, INC., Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. Nos. 4-790-384, 4-790-385.Industrial Claim Appeals Office.
December 10, 2010.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated January 19, 2010, that denied and dismissed the claimant’s two claims for workers’ compensation benefits. We affirm.

The claimant filed a claim for workers’ compensation benefits for an alleged injury arising out of and in the course of her employment on March 12, 2008. The claimant testified that on March 11 or March 12, 2008, while she was bent over, a metal rod that was stacked up on her right side fell and hit her on the back of the neck and shoulder area. This claim is identified as W.C. No. 4-790-384.

The claimant filed a claim for workers’ compensation benefits for an injury arising out of and in the course of her employment on April 8, 2008. The claimant testified that on or about April 8, 2008, when she was walking out of the garage door at the employer’s business, ice fell off the roof and struck her on the head. This claim is identified as W.C. No. 4-790-385.

The claimant was hired by the employer in August 2005 and continued to be employed until June 6, 2008 when she was terminated by her employer. On March 28, 2009, the claimant filed claims for compensation on both claims.

The ALJ determined that the claimant had failed to prove by a preponderance of the evidence that her medical treatment for her cervical spine condition was the result of

Page 2

either a work related injury occurring on March 12, 2008 or April 8, 2008. Therefore the ALJ denied and dismissed both claims. The claimant brings this appeal.

The petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. Moreover, the claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986). Under § 8-43-301(8) C.R.S., we are precluded from disturbing the ALJ’s order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law.

Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Whether the claimant sustained her burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993).

Here, we have reviewed the record and the ALJ’s findings of fact and conclusions of law. The ALJ found that the medical records did not document the claimant associating her onset of symptoms to an accident occurring at work until June 20, 2008 which was over two months after the most recent alleged work injury. The ALJ found that the fact that the claimant’s reporting of the symptoms as being work related corresponded to her loss of employment with the employer. This is supported by the testimony of the claimant’s supervisor and co-workers. Tr. (10-22-2009 Volume II) at 329-31, 356, 369-70. The claimant was seen by Dr. Bloink on April 9, 2008 and denied any head or neck injury. Exhibit E at 17 Tr. (4210/22/1009 Volume I) at 42, 154. The claimant was seen by Dr. Hainey on April 29, 2008 and denied any trauma. Exhibit F at 19. The claimant was seen at Southwest Memorial Hospital on June 19, 2008 for numerous complaints, but reported no trauma. Exhibit H at 25. The ALJ credited the report from Dr. Ogsbury and found that the claimant’s myelopathy was likely the result of the natural progression of the claimant’s degenerative disk disease and not the result of any work related injury. Exhibit 16. In our view, the ALJ’s findings are supported by substantial evidence in the record and the findings support the conclusion that the claimant failed to prove entitlement to benefits and compensation.

Page 3

Further, 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. The ALJ correctly applied the law and did not err in denying benefits. Accordingly, we perceive no basis on which to disturb the ALJ’s order.

IT IS THEREFORE ORDERED that the ALJ’s order January 19, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

Page 4

BELINDA TERWILLIGER, P O BOX 501, DOVE CREEK, CO, 81324 (Claimant).

DOVE CREEK IMPLEMENT, INC., P O BOX 546, DOVE CREEK, CO, 81324 (Employer).

PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., 7501 E LOWRY BLVD., DENVER, CO, 80230 (Insurer).

RITSEMA LYON, PC, Attn: CAROL A. FINLEY, ESQ., 225 N 5TH STREET, SUITE 510, GRAND JUNCTION, CO, 81501 (For Respondents).

BELINDA TERWILLIGER, 2498 N BROADWAY, CORTEZ, CO, 81321 (Other Party).