W.C. No. 4-504-650Industrial Claim Appeals Office.
February 26, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied a claim for permanent total disability (PTD) benefits. The claimant argues the ALJ’s order is void because the hearing was not completed within the time limits established by § 8-43-215(1), C.R.S. 2003, and because the ALJ did not enter the order within thirty days after conclusion of the hearing as required by § 8-43-215(1). The claimant further contends the ALJ “abused his discretion” in denying the claim for PTD benefits. We affirm.
On September 24, 2002, claimant’s counsel mailed an application for hearing listing the issues as medical benefits after maximum medical improvement and PTD benefits. A hearing was set for January 14, 2003. The hearing commenced on January 14, but was continued because the claimant’s vocational expert was ill on the day of the hearing and the respondents wished to present live testimony from their vocational expert. (Tr. January 14, 2003, Pp. 7, 70-71). The hearing was continued to and concluded on February 4, 2003. At the conclusion of the hearing the ALJ ordered the parties to file position statements by March 6, 2003.
On April 4, 2003, the ALJ entered the order currently under review. The ALJ found the claimant alleged that she is permanently and totally disabled because she developed asthma, an allergy, and emotional problems because exposure to latex in her employment. However, relying primarily on the opinions of the authorized treating physician and an allergy specialist, the ALJ found the claimant does not have an allergy to latex. Moreover, the ALJ was persuaded by the opinions of the treating physician and a Division-sponsored independent medical examination (DIME) physician, that the claimant does not have any psychological problem associated with her employment. Finally, the ALJ credited the opinions of the respondents’ vocational expert that the claimant is able to earn wages because she has no injury-related restrictions, and the claimant could find employment even if her self-imposed restrictions are accepted as valid. Consequently, the ALJ denied the claim for PTD benefits.
I.
The claimant first contends the April 4 order is void because the hearing was not completed within one hundred twenty days of the date he filed the application for hearing as required by §8-43-215(1). This argument is without merit.
Section 8-43-215(1) provides as follows:
Any hearing conducted under this article shall be completed within one hundred twenty days, or in the case where an extension of time of sixty days is allowable under the provisions of section 8-43-209, one hundred sixty days, after a request therefor pursuant to section 8-43-211(2).
Significantly, § 8-43-209(2), C.R.S. 2003, allows for one sixty day extension of time for good cause shown under various circumstances. One circumstance which permits a sixty day extension is “when permanent total disability is alleged.”
The claimant alleged entitlement to PTD benefits and the hearing was set on this issue. Consequently, by operation of §8-43-209 and § 8-43-215(1), the ALJ could, for good cause shown, extend the time for completion of the hearing up to one hundred sixty days after the application for hearing. On January 14 the ALJ implicitly determined there was good cause to extend the date for completion of the hearing because the claimant’s vocational expert was absent and the respondents wished to present live expert testimony.
As the claimant acknowledges, the hearing was complete within one hundred thirty-three days after the application was filed. Thus, there was no violation of § 8-43-215(1), and we need not determine whether such a violation would be jurisdictional if it had occurred.
II.
The claimant next contends the ALJ’s order is void because it was not entered within thirty days after conclusion of the hearing as required by § 8-43-215(1). We assume, arguendo, that the hearing was “concluded” on February 4, not when the position papers were received. Consequently, the written order was due to be issued on or before March 6, 2003.
Nevertheless, the court of appeals has held the time limit for the issuance of written orders is “directory” rather than mandatory. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996). Although the time for entry of written orders has been increased from fifteen days to thirty days subsequent to the Langton decision, the rationale for the court’s opinion remains applicable. Thus, we consider Langton to be dispositive of the claimant’s argument, and the ALJ’s order is not “void” because it was entered more than thirty days after conclusion of the hearing.
III.
The claimant next contends the ALJ “abused his discretion” in finding the claimant failed to prove the claim for PTD benefits. The claimant asserts in general terms that her testimony, and that of her vocational and medical experts supports the claim. The claimant further states that she “reserves the right to argue her position on this matter in subsequent written or verbal appeals,” but believes further specificity is unnecessary because of the ALJ’s “flagrant violations” of § 8-43-215(1). We perceive no error.
Initially, we note the claimant must specify particular arguments in the brief or such arguments are considered waived for purposes of further appeal. City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo.App. 2002) Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995). It is not possible for appeals examiners of the Industrial Claim Appeals Office to speculate about what specific arguments might have been made if the claimant had chosen to do so. Further, such speculation would deprive the respondents of their due process right to reply to such arguments. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990) (due process encompasses the right to make argument in support of a party’s position). Thus, we respond only to the very general assertion that the record does not support the order.
In order to prove entitlement to PTD benefits, the claimant is required to prove she is unable to earn wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 2003. Further, the claimant is required to prove the industrial injury is a “significant cause” of the PTD in the sense that there is direct causal relationship between the precipitating event and the resulting disability. Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). Resolution of both of these issues are questions of fact for determination by the ALJ. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998) Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
Because these issues are factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The mere fact that some evidence in the record might support a different result affords no basis for appellate relief. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, the ALJ found the claimant did not prove the employment caused the allegedly disabling conditions of latex allergy and depression. Thus, the ALJ necessarily determined that the claimant’s industrial injury is not a “significant cause” of the alleged disability. This finding is amply supported by the opinions of the treating physician and allergy specialist, as well as the opinions expressed by the DIME physician. While some evidence might support a contrary result, the ALJ discredited this evidence.
In any event, the claimant found the claimant is able to earn wages. This finding is supported by the testimony of the respondents’ vocational expert, which the ALJ found credible. Moreover, the ALJ discredited the contrary opinion of the claimant’s vocational expert. Under these circumstances, there is no basis to interfere with the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 4, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at theaddresses shown below on February 26, 2004 by A. Hurtado.
Jeanette Harris, P. O. Box 2212, Estes Park, CO 80517
Tim Coakley, Estes Park Medical Center, P. O. Box 2740, Estes Park, CO 80517
Colorado Hospital Association Trust, c/o Denise Groves, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
Gina Gradecki, Esq., 2550 Stover St., Bldg. C, Fort Collins, CO 80525 (For Claimant)
Andrew R. Bantham, Esq. and T. Paul Krueger, II, Esq., 2629 Redwing Rd., #330, Fort Collins, CO 80526 (For Respondents)