W.C. No. 3-855-154Industrial Claim Appeals Office.
July 24, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied his petition to reopen a settlement agreement. We affirm.
The claimant filed a petition to reopen a full and final settlement which was approved on February 12, 1998. The petition alleged fraud and change of condition.
Following a hearing on February 28, 2002, the ALJ entered the order denying the petition to reopen. The ALJ found the claimant alleged an attorney for the respondents fraudulently failed to advise the claimant, prior to the 1998 settlement, that his condition could worsen and he might need medication for the rest of his life. However, the ALJ found there was no fraud because the claimant underwent an advisement hearing prior to approval of the settlement at which he explicitly acknowledged he might need another surgery. Thus, the ALJ determined the claimant made a “unilateral mistake” concerning his condition and there was “no persuasive evidence at hearing regarding fraud or mutual mistake of material fact.”
The claimant filed a petition to review the ALJ’s order, but did not file a brief in support of the petition. The only specific allegation of error contained in the petition to review is the agreement that the ALJ failed to address an alternative theory of fraud. Specifically, the claimant asserts he presented evidence that the attorney who represented the respondents at the time of the 1998 settlement had a conflict of interest which precluded her participation in the settlement negotiations. The claimant did not designate a transcript of the February 28 hearing as part of the record on appeal. See § 8-43-301(2), C.R.S.
The party asserting error on appeal has the burden to present a record sufficient to prove 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, ___ P.3d ___ (Colo.App. No. 99CA2431, December 6, 2001). Similarly, we must presume the ALJ’s pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Without a transcript, we have no way of determining what if any evidence the claimant presented involving the alleged “conflict of interest.” Neither do we have any basis to decide whether the conflict, even if it existed, amounts to fraud sufficient to set aside a settlement agreement under § 8-43-204(1), C.R.S. 2001. Finally, there is no basis to set aside the ALJ’s factual determination that the claimant failed to present persuasive evidence of fraud. Thus, we must uphold the ALJ’s order because the record is insufficient to demonstrate any error.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 1, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 24, 2002 to the following parties:
Steven Apodaca, Register Number 50798, Department of Corrections — Centennial, P. O. Box 600, Unit E-1-6, Canon City, CO 81215
Loveland Foods/Continental Grain Co., ___ Travelers Insurance,___ Travelers Property Casualty, P. O. Box 173762, Denver, CO 80217-3762
Travelers Insurance, ___ Travelers Property Casualty, P. O. Box 173762, Denver, CO 80217-3762
Julie D. Swanberg, Esq., P. O. Box 5148, Denver, CO 80217-5148 (For Respondents)
By: A. Hurtado