Opinion
W.C. No. 4-799-180.
July 28, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated March 29, 2010, that denied and dismissed the claimant's claim for workers' compensation benefits. We affirm.
The claimant was employed as a night stocker with the employer. The claimant alleged that while she was pulling a pallet on June 3, 2009, she slipped and fell to the floor hitting her hip and elbow. The respondent presented the testimony of co-workers and management contradicting the testimony of the claimant. The ALJ credited the testimony of the employer witnesses. The ALJ concluded that the claimant had failed to prove by a preponderance of the evidence that she suffered an injury arising out of and in the course and scope of her employment with the employer.
The claimant brings this appeal. In her Petition to Review the claimant contends that no attorney, in the county she lived in, would take her case. The claimant requests another hearing with a lawyer from another county. The claimant argues that she was completely alone at the hearing and could not subpoena any witness in her behalf.
We note initially that 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). 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).
We are not persuaded to interfere with the ALJ's order by the claimant's argument that she could not subpoena any witness in her behalf. It was the claimant's burden to endorse the individuals as witnesses for the hearing and request the ALJ issue subpoenas to secure their attendance. See §§ 8-43-207(1)(a), 8-43-207.5 C.R.S. McGinley v. Mariner Post Acute Network, W. C. No. 4-535-097 (April 07, 2003) aff'd McGinley v. Industrial Claim Appeals Office No. No. 03CA0814 (Colo. App. February 26, 2004); OAC Rule 18. Furthermore, because of the failure of the claimant to provide a transcript the record does not show whether the claimant requested a continuance to secure the attendance of additional witnesses.
Regarding the claimant's argument that she was unrepresented at the hearing, we note that the claimant was represented at one time, but by an order entered on December 15, 2009 a Prehearing Administrative Law Judge allowed her attorney to withdraw. We further note that by a Prehearing Conference order dated December 15, 2009 a hearing scheduled for January 4, 2010 was cancelled and the claimant was advised that she had the right, but was not required to be represented by an attorney of her choice at the hearing and was encouraged to contact an attorney as soon as possible if she desired representation at the hearing. The hearing was held on March 10, 2010. Without a transcript we are not in a position to know if the claimant requested a continuance to secure representation at the time of the hearing.
We have no authority to appoint an attorney to represent the claimant. Hook vs. U.S. Home Corporation, W.C. No. 4-563-420 (February 16, 2007), aff'd Hook v. Industrial Claim Appeals Office, No. 07CA0437 (Colo. App. October 04, 2007) (not selected for publication). Moreover, pro se litigants must adhere to the same principles and procedures as those who are qualified to practice law. Feeney v. Steamboat Ski Resort Corp., W. C. No. 4-246-365 (March 05, 1996). Pro se parties must be prepared to accept the consequences of their own tactical and procedural errors. Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (1980); Rosenberg v. Grady, 843 P.2d 25 (Colo. App. 1992).
Under § 8-43-301(8) 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.
Here, because the claimant's entitlement to benefits was disputed, she had 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. Id; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993). As noted above we are required to presume that the ALJ's factual findings are supported by the record.
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 support the conclusion that the claimant failed to prove entitlement to compensation. 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 dated March 29, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas M. Schrant
ADINA BRYAN, 891 E OTTLEY AVE, FRUITA, CO, (Claimant).
LAW OFFICE OF STEVEN J. PICARDI PC, Attn: STEVEN J. PICARDI, ESQ., PARKER, CO, (For Respondents).
SEDGWICK CMS, Attn: MS SHARMIE JENSEN, LEXINGTON, KY, (Other Party).