W.C. No. 3-927-353.Industrial Claim Appeals Office.
July 15, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) which denied medical benefits. We affirm.
The claimant sought an award of prescription medications. Crediting the opinions of Dr. Brodie, the ALJ found the disputed medication was prescribed to treat symptomatology that was not related to the industrial injury. Therefore, the ALJ denied the request for medical benefits.
The claimant’s Petition to Review contains general allegations of error under § 8-43-301(8), C.R.S. 2005. The claimant also contends the ALJ erroneously precluded cross-examination of Dr. Brodie about the amount of compensation Dr. Brodie received from the respondent for his testimony and whether the fee complied with the limits provided by the Workers’ Compensation Rules of Procedure. The claimant also contends the ALJ erred in permitting the claim to be heard more than 160 days from the date of the Application for Hearing as required by § 8-43-209 and 8-43-215
C.R.S. 2004. However, neither the claimant nor the respondent filed an appellate brief. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Under § 8-42-101(1)(a), C.R.S. 2004, the respondent is liable for medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). It is the claimant’s burden to prove a causal connection between the industrial injury and the need for medical treatment. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). It is the ALJ’s sole prerogative to assess the sufficiency and probative value of the evidence to determine whether the claimant has met her burden of proof. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004; Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon her credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992).
Because the claimant has not provided a transcript of the hearings held on September 16, 2004, and October 26, 2004, we are required to presume the ALJ’s findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Nevertheless, the ALJ’s findings are also supported by substantial evidence in Dr. Brodie’s written reports. (Respondent’s Hearing Exhbits A, B). Consequently, the ALJ’s findings are binding on review.
Further, the ALJ’s findings support her conclusion the claimant failed to prove an entitlement to the requested medical benefits. Therefore, the ALJ did not err in refusing to require the respondent to pay for the requested prescription medications.
Next, we acknowledge that due process requires the parties be afforded an opportunity to confront adverse witnesses and present evidence in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, the ALJ is vested with broad discretion to determine the course of an evidentiary hearing Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). We may not interfere with the ALJ’s ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94
(Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s ruling exceeds the bounds of reason, as where it is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
The party who alleges an abuse of discretion has the burden to provide a record sufficient to show the error. If the appealing party fails to provide an adequate record, the correctness of the ALJ’s rulings must be presumed. See People v. Lawrence, 55 P.3d 155 (Colo.App. 2001). It follows, that because the hearing transcripts were not provided, the record is legally insufficient to support the claimant’s contention the ALJ abused her discretion insofar as she restricted the claimant’s cross-examination of Dr. Brodie.
Finally, § 8-43-209 states that hearings “shall be heard within eighty to one hundred days after the” filing of the application for hearing. However, § 8-43-209(2), allows for one sixty day extension of time for good cause shown under various circumstances. Section 8-43-215(1) provides that a hearing “shall be completed within one hundred twenty days” of the application for hearing as provided in § 8-43-211(2), C.R.S. 2004. The purpose of these statutes is to expedite the hearing process. However, these statutes don’t establish a procedure to be followed if a hearing is not commenced and completed within the time limitations. Therefore, in Palacios-Ortiz v. Excel Corporation, W.C. No. 4-527-581(April 2, 2004), we held that the provisions of § 8-43-209 and 8-43-215 are directory rather than jurisdictional. See Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). We adhere to our prior conclusions.
If follows that insofar as the claimant contends the ALJ erroneously conducted the hearing more than 160 days after the initial Application for Hearing, the claimant inherently alleges a violation of procedural due process. However, the record is legally insufficient to establish the claimant preserved this argument by appealing the prehearing ALJ’s order dated July 21, 2004, which granted the respondent’s request for an extension of time to conduct the hearing. Therefore, we do not consider the claimant’s argument on review.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 23, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Phyllis Andrews, Hudson, CO, Weld County, c/o Norma Stimmler, Denver, CO, Tim Guill, Esq., Denver, CO, (For Claimant).
Melissa Loman Evans, Esq., Denver, CO, (For Respondents).