As claimant, Orr had the burden of establishing his right to benefits. Industrial Commission v. Ewing, 160 Colo. 503, 418 P.2d 296 (1966); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). The evidence does not establish that he was an "employee" of the Department or of the County under the provisions of section 8-41-106(1)(a)(I)(A). That section provides benefits for persons "in the service of the state, or of any county . . . or of any public institution or administrative board thereof under any appointment or contract of hire, express or implied. . . ."
See Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979). Whether a claimant has sustained his burden of proof is a question of fact for the ALJ. Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). The ALJ is the sole arbiter of conflicting medical evidence, Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990), and his or her findings are binding on review if supported by substantial evidence and plausible inferences drawn from the record.
However, irrespective of whether the standard of proof at the administrative adjudicatory level of proceedings is clear and convincing, beyond a reasonable doubt, or merely a preponderance of the evidence, it is solely for the trier of fact to determine the persuasive effect of the evidence and whether the burden of proof has been satisfied. See Mehlbrandt v. Hall, 121 Colo. 165, 169, 213 P.2d 605 (1950); see also Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Therefore, we agree with the Panel that the question whether a party has overcome the IME impairment rating by clear and convincing evidence is a question of fact for the ALJ's determination.
Reviewing the order in its entirety, together with the evidence and the reasonable inferences therefrom, we are satisfied that the claim was properly dismissed. SeeEisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). The order is affirmed.
Dr. Jacobson's opinion that the American Medical Association guidelines were inapplicable to claimant's circumstances and that his impairment determination, based on the formula proposed by the Committee for Hearing Bioacoustics and Biomechanics of the National Academy of Sciences and Natural Resources Council which relied upon factors more appropriate to claimant's situation, was given more credence by the ALJ as the trier of fact. And, even one of employer's experts agreed that the formula used by Dr. Jacobson more accurately measured claimant's hearing loss than the AMA formula. The determination of the credibility of expert witnesses may not be disturbed by this court on appeal. See Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Furthermore, since there was substantial, although conflicting, evidence to support the ALJ's findings, we are bound by them on review.
Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981).
Where, as here, there is ample competent evidence supporting its findings they are binding on review. See Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). IV.
The hearing officer's resolution of conflicting evidence is binding on review. See Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Here, while the evidence was in conflict as to the origin of claimant's mental disability, there was ample competent evidence to support the finding that the disability was proximately caused by the unique psychological stresses of undercover narcotics work.
Findings of the Industrial Commission that are supported by competent probative evidence, regardless of whether there is conflicting evidence, are conclusive on review. Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Petitioners contend that the evidence establishing involuntariness was hearsay and note that under Romero v. Industrial Commission, 616 P.2d 992 (Colo.App. 1980) "hearsay evidence . . . cannot alone support an order of the Commission."
Based on that finding, the denial of benefits was proper. As stated in Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981): "The burden was on the claimant to establish his right to compensation benefits, and whether he sustained his burden was a factual question for the [trier of the facts] to determine.