Opinion
W.C. No. 4-712-600.
October 9, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated June 26, 2007 that denied and dismissed the claimant's claim for workers' compensation benefits. We affirm.
The claimant alleges he suffered an injury on January 23, 2007 while stacking tires for the employer. The claimant felt fine on January 23, 2007 but on the next day, he experienced pain in his left shoulder. The claimant told his supervisor that he was not sure if he had done something at home or at work to cause his left shoulder pain. The ALJ found the claimant was not a credible witness concerning the alleged injury of January 23, 2007. The claimant had previously filed numerous workers' compensation claims against other employers.
On appeal, the claimant argues that a Prehearing Administrative Law Judge (PALJ) erred in denying the claimant's motion to consolidate. The claimant had requested, in his petition to review, that the motion to consolidate and the PALJ's ruling on the motion be included in the record for appeal. The record on appeal does not contain the motion or the PALJ's order. However, a remand is not necessary for the respondents, in their brief, confess the existence of the prehearing order denying the claimant's motion to consolidate. The respondents argue that the PALJ's order was interlocutory and should have been addressed at the hearing held before the ALJ.
The claimant's application for hearing does not list review of the PALJ's order as an issue to be considered at the hearing. The ALJ's order does not list the PALJ's order as an issue for consideration at the hearing nor does the claimant on appeal contend that he raised the issue before the ALJ. The claimant has failed to provide a transcript of the hearing and we are therefore unable to determine whether the issue of the PALJ's order was raised at the hearing. Cf. Valenzuela v. Best Car Buys, W.C. No. 4-664-544 (January 23, 2007) (factual assertion in petition to review did not provide basis for appellate relief in absence of transcript).
At the hearing the claimant could have sought review of the PALJ's interlocutory prehearing order by the ALJ as prescribed by the Colorado Supreme Court in Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998). Here the claimant failed to raise the propriety of the PALJ's interlocutory order before ALJ and therefore that argument has not been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994). We decline to address the claimant's argument, raised for the first time on appeal that the PALJ erred in denying the claimant's motion to consolidate.
The claimant, in his petition to review, contends that the ALJ also erred in denying compensability. However, in his brief filed in support of his petition to review the claimant lists only the issue of whether the PALJ erred in denying the claimant's motion to consolidate. The claimant, as an aside in his brief, notes that he has no idea why the ALJ would find the case not to be compensable because the claimant has several prior cases. We are not certain whether the claimant still contends that the ALJ erred in denying compensability.
In any event, the claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2007. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and her determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is that quantum of probative evidence, which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
The ALJ found the claimant's supervisor testified that when the claimant reported the alleged injury to his left shoulder the claimant was unsure whether the injury occurred at home or at work. The claimant was unable to attribute his left shoulder pain to any activity. The ALJ found the claimant was not a credible witness concerning the alleged injury of January 23, 2007. The ALJ was also persuaded by the fact that the claimant had filed numerous prior workers' compensation claims and had served his resignation on the employer and then alleged another work injury. The ALJ noted that the case in large part turned on the credibility of the parties' witness. The ALJ found there was no independent corroborating evidence that an activity the claimant performed at work caused his left shoulder pain.
The order reflects a thorough consideration of the evidence, and resolution of the pertinent conflicts against the claimant. Further, in the absence of a transcript, we have no method to review the ALJ's findings and must presume they are supported by the evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Because we must presume the findings concerning compensability of the claim are supported by the evidence, we may not interfere with the ALJ's finding on the issue of causation.
IT IS THEREFORE ORDERED that the ALJ's order dated June 26, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
TIRE CENTERS, LLC ., Attn: CHARMAINE RAMSTEIN, SC, (Employer).
LIBERTY MUTUAL INSURANCE COMPANY, Attn: LAURA SALINAS, TX, (Insurer).
ALEXANDER RICCI, P.C., Attn: WILLIAM A. ALEXANDER, JR., ESQ., CO, (For Claimant).
LAW OFFICES OF RICHARD P. MYERS, Attn: APRIL D. MOORE, ESQ., CO, (For Respondents).