W.C. No. 4-242-726Industrial Claim Appeals Office.
March 26, 1997
FINAL ORDER
The pro se claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which dismissed the claim for benefits due to the claimant’s willful failure to comply with discovery. We affirm.
This matter was before us previously. In our Order of Remand dated October 15, 1996, we remanded the matter for a hearing concerning whether or not the claimant willfully failed to attend independent medical examinations (IME) arranged by the respondents. In particular, we directed the ALJ to determine whether, as the claimant alleged, her failure to attend the IMEs was attributable to the respondents’ failure to pay for the examinations in advance.
In accordance with our order the ALJ held a hearing, and in an order dated December 6, 1996, the ALJ made detailed findings of fact concerning the issues. Relying on the testimony of the respondents’ witnesses, the ALJ found that the claimant failed to attend IMEs scheduled for March 26, 1996, and June 24, 1996. The ALJ also found that the respondents timely advanced payment for the examinations, and the claimant was aware of her obligation to attend.
Under these circumstances, the ALJ concluded that the claimant willfully failed to attend the scheduled IME examinations. Consequently, relying on Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991), the ALJ dismissed the claim for benefits.
On review, the claimant submitted a brief arguing that the ALJ misinterpreted the facts, and erred in crediting the testimony of the respondents’ witnesses over her own testimony. Moreover, the claimant alleges that there were procedural irregularities in the conduct of the hearing. We find no error.
Where, as here, the appealing party fails to provide a transcript of the hearing, we must presume that the ALJ’s pertinent findings of fact are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Moreover, the claimant’s failure to provide a transcript affords us no basis for reviewing the alleged procedural errors.
Section 8-43-207(1)(e), C.R.S. (1996 Cum. Supp.), permits an ALJ to dismiss a claim “for willful failure to comply with permitted discovery.” C.R.C.P. 37(b)(2)(C). Here, the ALJ found that the claimant repeatedly failed to attend scheduled IMEs, after having been ordered to attend in March 1996. Moreover, the ALJ found that there was no excuse for the claimant’s failure to attend, and that she did so willfully and deliberately. These findings amply support imposition of the sanction of dismissal Sheid v. Hewlett Packard, supra.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 6, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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. (1996 Cum.Supp.).
Copies of this decision were mailed March 26, 1997 to the following parties:
Pamela G. Wubben, P.O. Box 484, Johnstown, CO 80534
Northern Colorado Restaurant Corp., 6550 Gunpark Dr., Boulder, CO 80301-3337
Travelers Indemnity Co. of America, Attn: Chris Barnes, P.O. Box 173762, Denver, CO 80217-5980
Christina M. Middendorf, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
By: _______________________________