W.C. No. 4-504-357.Industrial Claim Appeals Office.
January 23, 2004.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied the claimant’s Motion to Strike Final Admission of Liability. Because the findings are insufficient to support appellate review, and because the ALJ’s order may not constitute a final order for purposes of §8-43-301(2), C.R.S. 2003, we remand for entry of a new order.
This statement of the facts is gleaned from the claimant’s motion, the attachments to the motion, and the respondents’ reply. The claimant sustained a back injury in June 2001. By January 2003, the authorized treating physician (ATP) had not placed the claimant at maximum medical improvement (MMI). In April 2003, pursuant to the provisions of § 8-42-107(2)(b)(II), C.R.S. 2003, the respondents requested a Division-sponsored independent medical examination (DIME) to determine the issue of MMI.
However, on May 7, 2003, the ATP placed the claimant at MMI and assigned a 14 percent whole person impairment rating. On June 5, 2003, the respondents filed a Final Admission of Liability (FAL) admitting for permanent disability benefits based on the ATP’s 14 percent rating. The claimant filed an objection to the FAL.
The DIME also occurred on June 5. Thereafter, the DIME physician issued a report opining the claimant reached MMI in February 2003 and sustained a 10 percent whole person impairment. The Division of Workers’ Compensation (DOWC) issued a “notice of completion” of the DIME on June 26. Then, or about July 1, 2003, the claimant’s attorney’s office called the DOWC requesting that the objection to the FAL be withdrawn. The claimant’s attorney confirmed this request in writing on August 1, 2003.
On August 4, 2003, the respondents filed a second FAL. The August 4 FAL admitted liability for permanent disability benefits based on the DIME physician’s 10 percent whole person rating.
By motion dated August 8, 2003, the claimant moved to “strike” the August 4 FAL. The motion argues that the June 5 FAL closed the claim after the claimant withdrew the objection, and the respondents were not entitled to amend the June 5 FAL by filing the second FAL on August 4. In support, the claimant relied on §8-43-203(2)(b), C.R.S. 2003, and HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990). The respondents replied that they were obligated by § 8-42-107(8), C.R.S. 2003, to file the August 4 FAL based on the DIME physician’s rating or request a hearing to contest it.
On August 26, 2003, the ALJ entered an order denying the claimant’s motion to strike the FAL. The order contains no findings of fact or conclusions of law, and does not indicate whether the ALJ anticipated further litigation concerning the claimant’s right to benefits. The claimant then filed a motion to reconsider and a petition to review the ALJ’s order. The ALJ denied the motion to reconsider on September 22, 2003, again without specific findings. The matter was transmitted to us on December 12, 2003.
On review, the claimant reiterates the arguments contained in the original motion to strike the FAL, and also argues that the August 4 FAL was not timely filed after the DIME physician’s report. The respondents repeat their arguments.
Initially, we note that it is impossible to tell from this record whether the ALJ’s order denying the motion to strike the August 4 FAL is final and reviewable for purposes of §8-43-301(2). Under § 8-43-301(2), an order is interlocutory and unreviewable unless it awards or denies benefits or penalties Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). In this case, the ALJ’s refusal to strike the August 4 FAL does not necessarily deny the claimant any benefits if the claimant timely contested the FAL and further litigation is pending concerning the claimant’s right to permanent disability benefits See Ortiz v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1723, July 17, 2003).
We note that in their brief, the respondents assert the claimant did not timely contest the August 4 admission and may not now do so. However, that assertion is not established of record, and factual representations contained in briefs may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
However, even if the ALJ’s order is final and reviewable, it is not sufficient to support appellate review. Section 8-43-301(8), C.R.S. 2003. Although an ALJ is not held to a “crystalline standard” in drafting an order, the ALJ must enter findings of fact and conclusions of law sufficient to reveal the reasoning which underlies the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Here, the ALJ’s order contains neither findings of fact nor any discussion of the ALJ’s application of the law. Indeed, the ALJ may have concluded that there is a disputed issue of fact which is material to the resolution of the legal issues and anticipated a hearing.
Under these circumstances, the ALJ’s order dated August 26, 2003, must be set aside, and the matter remanded for entry of a new order. The order should contain specific findings of fact and conclusions of law explaining the basis of the relief granted. The ALJ may, in the exercise of her discretion, conduct a hearing.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 26, 2003, is set aside, and the matter is remanded for entry of a new order and such further proceedings as the ALJ deems necessary.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
Copies of this order were mailed to the parties at theaddresses shown below on January 23, 2004 by A. Hurtado.
Toni A. Griego, 19375 E. 40th Pl., Denver, CO 80249
MEG-B, Inc. d/b/a The Cleaning Authority, 2111 Trenton Way, #107, Denver, CO 80231
Western Guaranty Fund, c/o Judy Rollins, Cambridge Integrated Services, 1850 N. Central Ave., Phoenix, AZ 85004
Linda Giovoni, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80155
Robert J. Steinborn, Esq. and Suzanne M. Gall, Esq., 11184 Huron St., #10, Denver, CO 80234 (For Claimant)
Anne Smith Myers, Esq. and Michelle N. Young, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)