W.C. No. 4-364-012Industrial Claim Appeals Office.
February 29, 2000
ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which denied and dismissed her claim for workers’ compensation benefits. We remand the matter for further proceedings and completion of the record.
The claimant alleged she developed bilateral carpal tunnel syndrome (CTS) from her employment with the respondent. Based upon the evidence presented at a hearing on March 4, 1999, the ALJ found the claimant failed to establish that the CTS arose out of and in the course of her employment. Therefore, in an order dated April 19, 1999, the ALJ denied and dismissed the claim.
The claimant’s attorney timely filed a Petition for Review the April order and alleged that the ALJ’s findings of fact were not supported by the record. The Petition also designated the March 4 hearing transcript as part of the appellate record. There is some indication in the record that the claimant’s attorney of record subsequently withdrew from the case. However, the record does not contain a motion to withdraw or an order granting the request.
On July 22, 1999, the court reporter sent the claimant a letter which requested payment for the transcript if the claimant still wanted preparation of the March 4 hearing transcript. The record certified to us for review on December 30, 1999, does not contain a hearing transcript. However, the claimant asserts that on November 24, 1999, she sent the court reporter a letter which requested a hearing transcript, but the letter was later returned “unclaimed.” Attached to the brief is a copy of a certified mailing envelope dated November 24, 1999, addressed to the court reporter at the address listed on the letter of July 22, 1999, and marked “unclaimed.”
The claimant also asserts that she moved for an extension of time to file her brief in support of the petition to review, which was denied. However, the appellate record does not contain a copy of the motion or order denying the extension.
Furthermore, the record does not contain a briefing schedule, even though the respondent requested in September 1999, that a briefing schedule be established. Nevertheless, the record contains the claimant’s December 6, 1999, “Opening Brief” in Support of the Petition to Review. The record also contains the respondent’s opposing brief, as well as pleadings entitled the claimant’s “Second” and “Third” briefs in response to the respondent’s opposition brief.
Section 8-43-301(2), C.R.S. 1999, provides that, the appealing party shall at the same time as the petition to review is filed, “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.”
The claimant’s appellate brief contains allegations which, if credited, might support a finding that the claimant intended to include the hearing transcript in the appellate record and attempted to arrange for payment of the transcript prior to the time the case was certified for our review. Because the record does not contain the claimant’s motion for extension of time or the ALJ’s order denying the motion, we are unable to ascertain if the ALJ has determined whether the record should include the transcript. Moreover, we may not accept or reject the claimant’s factual assertions on review. Section 8-43-301(8), C.R.S. 1999. Consequently, the matter must be remanded to the ALJ.
On remand, the ALJ shall complete the record to include the motion and order allowing the withdrawal of the claimant’s attorney of record, the briefing schedule and the pleadings associated with the claimant’s request for an extension of time to file her brief in support of the petition to review. Furthermore, if she has not already done so, the ALJ shall resolve the claimant’s implicit request for an extension of time to make payment arrangements for the hearing transcript.
IS THEREFORE ORDERED that the matter is remanded for further proceedings and completion of the record consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
Copies of this decision were mailed February 29, 2000
to the following parties:
Christine G. Dubs, P.O. Box 164, Hygiene, CO 80533
Nick Butler, Gates Rubber Company, P.O. Box 5887, Denver, CO 80217
Kurt Muehler, RSKCo, P.O. Box 5307, Denver, CO 80217-5307
Lynn P. Lyon, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Pendroy