W.C. No. 4-014-050Industrial Claim Appeals Office.
August 2, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which reduced the claimant’s permanent total disability benefits based upon the receipt of Social Security Disability Insurance (SSDI) benefits. We affirm.
In a prior order, the claimant was awarded permanent total disability benefits at the rate of $152.76 per week, subject to offsets or reductions. Commencing August 1991 the claimant was awarded SSDI benefits.
Following a hearing on April 18, 2001, the ALJ entered the order on review. The ALJ allowed the respondents to offset their liability for permanent total disability benefits due to the claimant’s receipt of SSDI benefits. The ALJ also allowed the respondents to recover overpaid benefits at the rate of $2.07 per day. Consequently, the ALJ ordered the respondents to pay permanent total disability benefits at the rate of $96.04 per week.
The claimant’s Petition to Review contends the ALJ’s order concerning the SSDI offset is not supported by the applicable law because the claimant was age 40 at the time of the injury and under §8-42-103(c)(IV), C.R.S. 2000, the SSDI offset is only applicable if the claimant was age 45 or older at the time of the injury. The claimant also contends she thought the offset ended at age 65. However, the claimant has not filed a brief in support of the petition to review.
We conclude the claimant waived these arguments. Consequently, we have no basis to disturb the ALJ’s order. Section 8-43-301(8), C.R.S. 2000.
Waiver is the intentional relinquishment of a known right and a party may waive value rights. Johnson v. Industrial Commission, supra Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984); Durbin v. Bonanza Corp., 716 P.2d 1124, 1128 (Colo.App. 1986). Furthermore, a judicial admission is binding on the party who makes it and may be the basis of a judgment. Durbin v. Bonanza Corp., supra.; Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). Accordingl , a party may not take one position before ALJ and argue a contrary position on appeal. Schlage Lock v. Lahr, supra. Neither may a party complain on appeal of an error it invited the ALJ to commi . Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993); Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6 (Colo.App. 1986).
The claimant did not designate a transcript of the April 18 hearing as part of the record on review. Under these circumstances, 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).
The ALJ found the claimant “agrees Liberty [Mutual Insurance Company] is entitled to the SSDI offset against her benefits in the weekly amount of $42.22.” (Finding of Fact 5). In the absence of a transcript, we must assume the ALJ’s finding is consistent with the claimant’s position at the hearing. Therefore, the claimant cannot now complain that the ALJ erroneously granted the SSDI offset. Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996) (issue not raised to ALJ considered waived on appeal). It follows the order is binding subject to the claimant’s right to reopen on the grounds of error or mistake. Section 8-43-303 C.R.S. 2000; see Koch Industries v. Pea, 910 P.2d 77
(Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 10, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
An action to modify or vacate this Order may be 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. 2000. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 2, 2001 to the following parties:
Bridgette Feasel, 1700 Teller St., Lakewood, CO 80215
Darden Restaurants, Inc. d/b/a Red Lobster, 4455 Wadsworth, Wheat Ridge, CO 80465
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., Englewood, CO 80112
Liberty Mutual Insurance Group, P. O. Box 168208, Irving, TX 75016-8208
Jack LeProwse, Esq., 7390 Lowell Blvd., Westminster, CO 80030 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
Barbara Carter, Special Funds, Division of Workers’ Compensation — Interagency Mail
BY: A. Pendroy