W.C. No. 4-680-692.Industrial Claim Appeals Office.
July 30, 2008.
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FINAL ORDER
The claimant seeks review of a corrected order of Administrative Law Judge Friend (ALJ) dated April 18, 2008, that awarded the claimant permanent partial disability benefits based on an impairment of 13 percent of the whole person. We affirm.
We initially consider the claimant’s motion for a free transcript of the hearing. The motion was filed with the Office of Administrative Courts (OAC) on July 23, 2008, and transmitted to us on July 25, 2008. We deny the motion.
On April 18, 2008, Administrative Law Judge Friend (ALJ) entered an order awarding the claimant permanent partial disability benefits based on an impairment of 13 percent of the whole person. The claimant filed a petition to review the order. The record does not reflect that the claimant requested preparation of the hearing transcript at that time.
The claimant subsequently filed a brief in support of the petition to review and on June 3, 2008, the respondents filed a brief in opposition to the petition to review. The respondents’ brief argues in part that because the claimant did not provide a transcript of the hearing, the ALJ’s resolution of factual issues must be presumed to be supported by the evidence. On June 4, 2008, the ALJ transmitted the matter for our review. We issued a notice of receipt of the record on June 6, 2008. On June 10, 2008, the claimant filed an objection to the respondent’s pleading with OAC, in which he stated that he was unable to pay the fee for a transcript of the hearing and in which he requested OAC to arrange for a free transcript of the hearing. The claimant’s June 10, 2008 objection was
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transmitted to us. On July 23, 2008, the claimant filed a motion for a free transcript of the hearing with the OAC, which was also transmitted to us. The respondents filed an objection with the OAC to the claimant’s motion for a free transcript of the hearing. In general, the respondents argue that the claimant failed to follow the applicable procedures for requesting a transcript and should be held accountable for his actions.
Section 8-43-301(2), C.R.S. 2007, provides that at the “same time” a petition to review is filed, the petitioner shall “order any transcript relied upon for the petition to review, arrange with the hearing reporter to pay for the same, and notify the opposing party of the transcript ordered.” Office of Administrative Courts’ Rule of Procedure (OACRP) 26(D)(2), 1 Code Colo. Reg. 104-3 at 12, provides that a party filing a petition to review who wishes to order a transcript must include in the caption of the Petition to Review a statement that a transcript is requested. The petition to review here contains no such request for a transcript. Further it is provided in Office of Administrative Courts’ Rule of Procedure (OACRP) 26(C), 1 Code Colo. Reg. 104-3 at 11 that a request for an extension of time to file a petition to review and transcript request may only be granted if the request is filed within the time limit for filing a petition to review. The time for filing the petition to review the ALJ’s April 18, 2008, order had expired long before the claimant made any request for a transcript.
We have previously concluded that where a petitioner seeks to designate a transcript as part of the appellate record, § 8-43-301(2) requires the petitioner to request the transcript simultaneously with filing the petition to review. See Bohan v. Direct Connection Executive Courier Service, Inc., W.C. No. 4-355-119 (October 22, 1998), af’d. on other grounds, Direct Connection Executive Courier Service, Inc., v. Industrial Claim Appeals Office, (Colo.App. No. 98CA2159, May 27, 1999)) (not selected for publication). Further, pro se litigants are presumed to know the applicable law and must be prepared to accept the consequences of their own procedural errors. See Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (1980); Paul v. Industrial Commission, 632 P.2d 638
(Colo.App. 1981).
The petition did not contain a request for preparation of the hearing transcript and the record contains no evidence the claimant made a request for a free transcript at the time of the filing of the petition to review. Here, the OAC reasonably interpreted the petition to review as not requesting a transcript and OAC sent out a notice and briefing schedule dated April 24, 2008, and mailed again on May 15, 2008. Consequently, the ALJ transmitted the record to us for review without a transcript. We conclude the claimant’s request to include a transcript in the appellate record is untimely and we deny the motion.
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The sole issue for resolution at the hearing was permanent partial disability (PPD) benefits. The issue of PPD essentially turned on whether the claimant should receive benefits based on ratings of the right and left extremities, or a whole person rating. The ALJ made the following findings. Dr. Hattem rated the claimant’s impairment as 16 percent of the right upper extremity and five percent of the left upper extremity. Dr. Hattem noted that these ratings would translate to a total whole person rating of 13 percent. Dr. Swarsen rated the claimant’s impairment of the right and left shoulder and converted those rating to a whole person for a combined whole person rating of 13 percent. The claimant’s complaints of shoulder and neck pain were credible. The ALJ concluded that the claimant established by a preponderance of the evidence that his functional impairment was not limited to the arm at the shoulder and PPD should be compensated based on a whole person impairment. In an order dated April 4, 2008, the ALJ awarded the claimant PPD benefits based on an impairment rating of 19 percent of the whole person. However, the ALJ on April 18, 2008, entered the corrective order here under review finding that April 4, 2008 order contained an error caused by mistake or inadvertence and ordered the insurer to pay the claimant PPD benefits based on an impairment rating of 13 percent of the whole person.
On appeal, the claimant’s request for relief appears to be for a specific dollar amount in the nature of a general civil award of damages. However, as we read the claimant’s brief in support of his petition to review he also objects to the corrective order’s reduction of PPD benefits from the 19 percent of the whole person as found in the first order to the 13 percent of the whole person as found in the corrected order.
The claimant challenges the ALJ’s reliance on the opinions of both Dr. Swarsen and Dr. Hattem. However, the record contains no transcripts of the hearing before the ALJ. As a general matter, we must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
In any event, the record supports the ALJ’s finding that Dr. Hattem assigned the claimant a combined 13 percent whole person rating. Exhibit Y at 66 (Exhibits for the March 7, 2008 hearing). The record further supports the ALJ’s finding that Dr. Swarsen agreed with Dr. Hattem’s 13 percent whole person rating of the claimant. Hattem Depo. at 23-24. It is clear to us that the ALJ in his corrected order merely modified his findings on the percentage of PPD to rectify a clerical error contained in the first order.
Under § 8-43-301(8) we are precluded from disturbing the ALJ’s order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved
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conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Here, the ALJ’s findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, the ALJ’s findings are amply supported by substantial evidence in the record and the findings support the conclusion that the claimant failed to prove entitlement to benefits beyond the 13 percent whole person rating awarded. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
Finally, insofar as the claimant is contending that the ALJ should not have entered the corrected order and should have awarded benefits based upon the 19 percent impairment rating, that argument is without merit. In this regard, we note that the ALJ has jurisdiction to enter a corrected order within 30 days after entry of an order “to correct any clerical errors in the order.” Section 8-43-302(1), C.R.S. 2007. Here, the ALJ’s corrected order was entered within the time period allowed and as we read the record and the orders, it was entered for a purpose permitted by the statute.
IT IS THEREFORE ORDERED that the ALJ’s order issued April 18, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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BULTO BENA, 9913 EAST 1ST AVENUE #K-305, AURORA, CO, (Claimant).
HERTZ CORPORATION, Attn: GREG ELWOOD, DENVER, CO, (Employer).
AIG, Attn: CATHERINE CROCKER, C/O: SPECIALTY RISK SERVICES, DENVER, CO, (Insurer).
MCCREA BUCK, LLC, Attn: REGAN H ROZIER, ESQ., DENVER, CO, (For Respondents).
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