W.C. No. 4-355-119Industrial Claim Appeals Office.
October 22, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ), which determined the claimant suffered a compensable injury and required the respondents to pay benefits and penalties. We affirm.
A procedural history of the claim is necessary to understand the issues on review. The pro se claimant sustained work-related injuries during a motor vehicle accident on September 15, 1997. The respondents denied liability.
Based upon the evidence presented at a hearing on April 23, 1998, the ALJ found that the claimant was injured while performing courier services for the clients of the respondent-employer. The ALJ also found that the claimant was not substantially free from the respondent-employer’s direction and control in performing his job duties, and was not customarily engaged in an independent trade or business related to courier services. Consequently, in an order dated May 15, 1998, the ALJ determined that the claimant was the respondent-employer’s employee and not an independent contractor at the time of the injuries. The ALJ’s order requires the respondents to provide medical benefits. The ALJ also determined the claimant’s average weekly wage and ordered the respondents to pay temporary disability benefits. Further, the ALJ imposed penalties on the respondents for their failure timely to admit or deny liability.
The respondents timely petitioned for review of the May 15 order. The petition alleges that the ALJ did not resolve conflicts in the evidence, that the ALJ’s finding are not supported by the evidence and that the ALJ’s findings do not support the order. Further, the respondents allege the ALJ erroneously denied their “Motion for Reconsideration and Recusal.” However, the respondents did not request a transcript or designate an appellate record in connection with their petition to review.
A briefing schedule was established which granted the respondents until July 16, 1998, to file a brief in support of the Petition to Review. On July 7, 1998, the respondents filed a “Motion for Extension of Time” to file a brief. In support, the respondents asserted that they had just requested a transcript of the April hearing and did not anticipate receiving the transcript for 10 days. Therefore, the respondents requested an extension to July 30, 1998, to file a brief in support of their petition.
In an order dated July 23, 1998, the ALJ noted that §8-43-301(2), C.R.S. 1998, requires the petitioner to order any transcript relied upon for the petition to review at the time the petition to review is filed. Therefore, the ALJ denied the respondents’ Motion for Extension of Time to file the brief.
Nevertheless, on July 29, 1998, the respondents filed a Brief in Support of the Petition to Review. The April 1998 hearing transcript was also filed at that time.
The claimant has not filed an opposition brief. However, the claimant filed a written objection to the respondents’ untimely brief and requests that we not consider the brief.
I.
The respondents’ brief in support of their petition to review was not filed within the time provided by the briefing schedule, and the ALJ declined to grant an extension of time to file a brief. See § 8-43-207(1)(I), C.R.S. 1998 (upon good cause shown the ALJ may grant reasonable extension of time for the taking of any action). Because the respondents failed to follow the applicable statute for requesting a transcript, the ALJ did not abuse his discretion in denying the request for an extension of time. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Under these circumstances, we grant the claimant’s request and do not consider the respondents’ appellate brief.
Further, we do not consider the April 28 transcript to be part of the appellate record. Section 8-43-301(2) provides that a petition to review shall be filed within twenty days of the date of the certificate of mailing of the ALJ’s order. Subsection (2) also states that:
“A petitioner shall, at the same time, order any transcript relied upon for the petition to review, arrange with the hearing reporter to pay for the same and notify opposing parties of the transcript ordered.”
Statutes are to be construed to give effect to the legislative purpose. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1033, September 18, 1997). To discern the legislative intent, we must first look to the plain language of the statute. Ihnen v. Western Forge, 936 P.2d 634 (Colo.App. 1997). Where the words are clear and unambiguous, the statute must be applied as written. Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997); Vaughn v. McMinn, 945 P.2d 404 (Colo. 1997).
The term “shall” refers to a mandatory act. Logan County Hospital v. Slocum, 165 Colo. 232, 438 P.2d 240 (Colo. 1968). Furthermore, the term “at the same time” is unambiguous and refers to a simultaneous act. Therefore, we conclude 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.
Here, the record reflects that the respondents’ Petition to Review was filed June 5, 1998. However, the respondents did not order a transcript of the April hearing until July 7, 1998.
Moreover, the respondents have not requested an extension of time to file the transcript. See Sigarst v. Tower Cleaners, W.C. No. 3-875-758 (May 11, 1990) (no abuse of discretion where ALJ refused to allow late filing of transcript where delay in requesting transcript was due to “inadvertence.”). Consequently, the transcript is not properly included in the appellate record for our review.
II.
In the absence of a transcript we must assume 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). Further, the ALJ’s findings support the award of benefits. See § 8-40-202(2), C.R.S. 1998. Specifically, the ALJ found that the respondent-employer exercised substantial control over the claimant’s delivery schedule and paid the claimant in his own name.
Moreover, insofar as there was conflicting evidence, the ALJ’s findings of fact reflect that he resolved the pertinent conflicts against the respondents. Therefore, we perceive no grounds which afford us a basis to disturb the ALJ’s May 15 order.
III.
Similarly, we perceive no basis to interfere with the ALJ’s order denying the respondents’ Motion for Reconsideration and Recusal. The respondents assert that they were denied due process of law as a result of the ALJ’s refusal to allow the presentation of testimony from a “representative of the insured.” The respondents concede that they did not identify a specific witness on their Response to the Application for Hearing. However, they contend that the ALJ allowed the claimant to testify even though the claimant did not endorse himself as a witnesses. Alternatively, the respondents argue that no endorsement was necessary because the representative was offered as a “rebuttal witness.”
Evidentiary determinations are within the ALJ’s discretion Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). Consequently, 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).
In his order dated July 23, 1998, the ALJ found that testimony from a “representative of the insured” was offered as part of the respondents’ case in chief. Consequently, the ALJ rejected the respondents’ assertion that the disputed testimony constituted “rebuttal” evidence.
In addition, the ALJ determined that endorsement of a “representative of the insured” did not satisfy the requirements of Rule VIII(A)(1)(b), 7 Code Colo. Reg. 1101-7 at 21. Further, the ALJ found that there was no stipulation to add a witness and that the respondents failed to establish good cause for the late endorsement of the representative of the insurer. Consequently, the ALJ denied the motion for reconsideration.
Because the transcript is not properly part of the appellate record, we must presume the ALJ’s finding that the respondents failed to establish good cause for the late endorsement of the disputed witness is supported by the record. Nova v. Industrial Claim Appeals Office, supra. Furthermore, the ALJ is correct in stating that Rule VIII(A)(1)(b) requires parties to list the name and addresses of all witnesses. Under these circumstances, we cannot say the ALJ abused his discretion is refusing to reconsider his ruling. See Coates, Reid Waldron v. Vigil, supra.
The respondents’ Motion for Recusal asserts that the ALJ was not impartial and that the ALJ erroneously counseled the claimant on procedural issues. Therefore, they argued the ALJ must recuse himself.
The ALJ is entitled to a presumption of integrity, honesty, and impartiality. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516
(Colo.App. 1985). Recusal is appropriate where the ALJ has a “personal, financial, or official stake in the decision which would evidence a conflict of interest on his part.” Neoplan U.S.A. Corp. v. Industrial Claim Appeals Office, 778 P.2d 312
(Colo.App. 1989).
The ALJ stated in his July 23 order that he has no personal, financial, or official stake in the outcome of the claim. In the absence of a transcript, we presume the record supports the ALJ’s statement. Furthermore, the fact the ALJ ruled against the respondents on certain procedural issues is insufficient to support a demand for recusal. Cf. In re Marriage of Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977) (adverse rulings alone are insufficient to show bias); Notz v. Notz Masonry Inc., W.C. No. 4-158-043 (May 28, 1996). Therefore, we cannot say the ALJ abused his discretion in refusing to recuse himself.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 15, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 22, 1998 to the following parties:
Brian P. Bohan, 15790 E. Alameda Pkwy., #4-201, Aurora, CO 80017
Direct Connection Executive Courier Service, 7200 E. Dry Creek, Unit F101, Englewood, CO 80112
Hartford Underwriters Insurance, Attn: Karen Gioia, P. O. Box 22815, Denver, CO 80222
Randy Kotel, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents)
BY: _______________________