W.C. No. 3-984-399Industrial Claim Appeals Office.
March 25, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ Erickson) which denied his petition to reopen. We affirm.
Review of the case history is necessary to consideration of the issues involved. On January 12, 1994, Chief Administrative Law Judge Felter (ALJ Felter) entered an order dismissing the claim for benefits on the grounds that the claimant was neither the employee, nor the statutory employee, of the Department of Labor and Employment (DOLE). The claimant petitioned to review the January 12 order, but on March 9, 1994, ALJ Felter dismissed the petition as untimely. The claimant did not appeal ALJ Felter’s March 9 order.
In April 1995 the claimant filed a petition to reopen. He alleged that the prior orders were erroneous and that they constituted an “abuse of discretion.” At the hearing before ALJ Erickson, the claimant testified that ALJ Felter erroneously limited his cross-examination at the December 1993 hearing, and that the January 12, 1994 order was sent to the wrong address.
However, ALJ Erickson denied the petition to reopen. He found that the claimant failed to prove that ALJ Felter erroneously limited his cross-examination. Moreover, ALJ Erickson determined that the claimant could have raised his arguments about the January 12 order and the dismissal of his petition to review by direct appeal. Under these circumstances, the ALJ concluded that it would be inappropriate to allow the claimant “to substitute the petition to reopen process for the petition to review process, which he lost by his inaction.”
On review, the claimant argues that ALJ Erickson’s order is erroneous. He raises essentially the same issues that he raised at the hearing before ALJ Erickson. We find no error.
Reopening of a claim based on error or mistake is discretionary with the ALJ, and we may not substitute our judgment for his absent an abuse of discretion. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An ALJ does not commit an abuse of discretion if he denies a petition to reopen where the evidence indicates that the error or mistake presents a question which could have been raised by direct appeal. Department of Agriculture v. Wayne, 30 Colo. App. 311, 493 P.2d 683
(1971).
Here, we agree with the ALJ that the evidence reflects that the claimant could have raised his cross-examination argument by direct appeal. Similarly, the claimant could have appealed ALJ Felter’s dismissal of his petition to review the January 12 order, but did not. Under these circumstances, the ALJ did not commit an abuse of discretion in denying the claimant’s petition to reopen.
Moreover, the record supports the ALJ’s determination that the claimant failed to prove an abuse of discretion or denial of due process by ALJ Felter. The claimant did not supply a transcript of the hearing before ALJ Felter, and therefore, there is no basis for finding that ALJ Felter abused his discretion. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Insofar as the claimant’s brief may be construed as raising other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ Erickson’s order, dated September 7, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed March 25, 1996 to the following parties:
Heulon L. Perrin, Jr., General Delivery, Denver, CO 80202
Heulon L. Perrin, Jr., 1530 California St., #238, Denver, CO 80202
Colorado Compensation Insurance Authority, Attn: Legal Dept. (Interagency Mail)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
(For the Respondents)
By: _____