W.C. No. 3-843-951Industrial Claim Appeals Office.
July 30, 1999.
ORDER
The claimant seeks review of a final order of Administrative Law Judge Henk (ALJ Henk) insofar as it denied a claim for penalties against Attorney Busser. We remand the matter for completion of the record.
The claimant requested a hearing on the issue of penalties based on Busser’s alleged failure to comply with the Workers’ Compensation Rules of Procedure, as well as C.R.C.P. 26. Busser moved for “summary judgment” based on the claimant’s response to interrogatories concerning the alleged violations. The claimant responded to the motion for summary judgment by alleging there are material issues of fact concerning the propriety of Busser’s conduct, and by making reference to remarks ALJ Wheelock allegedly made at a hearing on March 12, 1998. The March 12 hearing involved a claim for penalties against Attorney McCrea on grounds similar to those alleged against Busser.
On November 30, 1998, ALJ Henk entered an order granting Attorney Busser’s motion for summary judgment and denying the claim for penalties. Finding of Fact 8 of the order refers to orders of ALJ Wheelock dated April 16, 1998, and June 10, 1998.
Following entry of ALJ Henk’s order the claimant filed a petition to review and designation of record. The designation of record requests the “entire files” maintained by the Division of Workers’ Compensation and the Division of Administrative Hearings. The claimant also designated a transcript of the hearing held before ALJ Wheelock on March 12, 1998. A copy of the March 12 transcript was apparently provided to the Division of Administrative Hearings by attorney Busser in a letter dated March 9, 1999.
In determining whether the record supports ALJ Henk’s order granting the motion for summary judgment, we must review the record as it was postured before the ALJ. This would include the affidavits, answers to interrogatories, depositions, or other evidence properly of record at the time the ALJ ruled on the motion. See McKinley Construction Co. v. Dozier, 175 Colo. 397, 487 P.2d 1335 (1971).
Here, we are unable to ascertain whether the transcript of the March 12 hearing was before ALJ Henk at the time she ruled on the motion for summary judgment. Moreover, ALJ Henk’s reference to orders of ALJ Wheelock indicates that ALJ Henk considered those orders, but they are not contained in the record submitted to us. On remand, ALJ Henk shall determine which items contained in the record, if any, were not before her when she ruled on the motion for summary judgment. Those items shall be listed by ALJ Henk. ALJ Henk shall also include in the record all items which were considered, including the orders of ALJ Wheelock mentioned in Finding of Fact 8.
IT IS THEREFORE ORDERED that the matter is remanded to ALJ Henk for completion of the record as directed herein. When the record is complete, the matter may be retransmitted for our review.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
Copies of this decision were mailed July 30, 1999 to the following parties:
Jacqueline Reed, 3122 Firewood Dr., Colorado Springs, CO 80918
Hewlett Packard, Attn: Sylvia Harding, R.N., P.O. Box 7050, Colorado Springs, CO 80933-7050
Liberty Mutual Insurance Co., Attn: Leona Zuffoletto, 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
Subsequent Injury Fund — Interagency Mail
Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Scott Busser, Esq., 300 S. Jackson St., Ste. 570, Denver, CO 80209 (For Respondents)
Bruce B. McCrea, Esq., 1777 S. Harrison St., Ste. 1110, Denver, CO 80210 (For Respondents)
Andrew Katarikawe, Esq., Office of the Attorney General, 1525 Sherman St., 5th Floor, Denver, CO 80203 (For Subsequent Injury Fund)
By: A. Pendroy