W.C. No. 4-517-299.Industrial Claim Appeals Office.
August 12, 2004.
FINAL ORDER
The claimant seeks review of orders entered by Administrative Law Judge Friend (ALJ) dated August 15, 2003, and October 8, 2003, which allowed the respondents to withdraw their General Admission of Liability. We affirm.
The claimant testified that he suffered work-related injuries while tightening a bolt. The claimant alleged the wrench slipped which caused him to fall sideways and hit his head on a beam. The claimant initially alleged the injuries occurred on September 8, 2001. However, in a written claim for workers’ compensation benefits the claimant alleged the injuries occurred on August 19, 2001. Between August 19 and September 8 the claimant was involved in a rear-end motor vehicle accident.
The respondents filed a General Admission of Liability. However, the respondents subsequently requested retroactive relief from the General Admission on grounds the claimant misrepresented the cause of his injuries.
Based upon the evidence presented at hearings on May 2 and July 7, 2003, the ALJ determined the General Admission of Liability was fraudulently induced. Specifically, the ALJ determined the claimant misrepresented injuries sustained during a motor vehicle accident on August 25, 2001, as having occurred at work on September 8, 2001. Therefore, the ALJ granted retroactive relief from the General Admission.
On August 28, 2003, the claimant filed a Petition to Review. The Petition designated the hearing transcripts as part of the appellate record and asserted the claimant would be requesting a waiver of the transcript fee.
When no transcript fee was paid and no waiver was granted, the ALJ ordered the claimant to show cause why the transcript request should not be stricken. On October 7, 2003 the claimant filed an Application for Indigency Determination. The claimant also responded to the show cause order and asserted that, the Application was not filed earlier because:
“Counsel for the claimant mailed the Application for Indigency Determination to the claimant on August 26, 2003. However, the claimant lives out of state and counsel temporarily lost touch with the claimant.”
On October 8, 2003, the ALJ determined the claimant did not show good cause for his failure timely to make payment arrangements for the transcript. Therefore, the ALJ struck the transcript request. The claimant filed a Petition to Review the October 8 order.
The claimant then moved to stay the briefing schedule on review of the August 15 order until after we reviewed the October 8 order. The motion was granted. However, when the claimant’s attorney later withdrew, the claimant agreed to file a brief in support of his petition to review the August 15 order by May 19, 2004. No supporting brief was filed by June 15, 2004, and consequently, the ALJ transmitted the matter to us for review.
I.
On review of the October 8 order the claimant contends he offered a reasonable explanation for the delay in filing the Application for Indigency Determination. The claimant also contends he is indigent and requires the transcripts to effectively challenge factual errors in the ALJ’s August 15 order. Therefore, the claimant argues the October 8 order results in a deprivation of due process guarantees. We reject this argument.
Section 8-43-301(2), C.R.S. 2003, provides that at the time of the filing of the petition to review, the petitioner shall “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.” Rule of Procedure VII (C)(2), 7 Code Colo. Reg. 1101-3 at 10, states that when arrangements to pay for a transcript have not been made with a court reporter on a timely basis, an ALJ may determine the transcript has been withdrawn.
Because the ALJ’s authority under Rule VII is discretionary we may not disturb the ALJ’s determination that the transcript request was withdrawn unless the determination is an abuse of discretion. See Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989) (use of the term “shall” indicates mandatory action); Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988). Under this standard the ALJ’s determination is binding unless it exceeds the bounds of reason because it is unsupported by the evidence or contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1995).
Admittedly, the claimant gave an explanation for not timely filing an Application for Indigency Determination. However, the ALJ reasonably interpreted the explanation to mean that the claimant’s attorney was unable to obtain the claimant’s signature on the Application for Indigency Determination because the claimant failed to keep the attorney apprised of his address. Further, the claimant did not allege he was physically unable to keep his attorney apprised. Under these circumstances, we cannot say the evidence is inconsistent with the ALJ’s finding that the explanation does not establish good cause for the delay. Therefore, we must uphold the ALJ’s order which vacated the transcript request.
II.
Concerning the ALJ’s August 15 order the claimant’s Petition to Review contains general allegations of error. See § 8-43-301(8), C.R.S. 2003. Further, the record transmitted to us on review does not contain a brief in support of the Petition. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Section 8-43-203(2)(d), 2003, provides that: “if any liability is admitted, payments shall continue according to admitted liability.” The courts have interpreted this provision to mean that if an admission of liability is filed the respondents are bound by the admission until relieved of the admission by order of the ALJ, and they are limited to prospective relief. HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990). However, retroactive relief may be granted where the admission was fraudulently induced by the claimant’s material misrepresentations. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985) ; Arenas v. ICAO, 8 p. 3d 558 (Colo.App. 2000) ; Lewis v. Scientific Supply Co., 897 P.2d 905
(Colo.App. 1995).
The determination of whether the claimant fraudulently provided materially incorrect information which was relied upon to induce the filing of an admission of liability is a question of fact. Kraus v. Artcraft Sign Co., supra; Vargo v. Industrial Commission, 626 P.2d 1164
(Colo.App. 1981). Consequently, the ALJ’s findings are binding if supported by substantial evidence and the ALJ’s plausible inferences drawn from the record. Section 8-43-301(8); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Section 8-43-301(8) precludes us from interfering with the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ’s findings of fact. The ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992). Furthermore, because the hearing transcripts are not part of the appellate record, 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).
Finally, the ALJ’s findings support the conclusion the respondents were induced to file the General Admission of Liability by the claimant’s fraudulent representation that he suffered a work related accident. Therefore, the ALJ did not err in granting retroactive relief from the General Admission. Vargo v. Industrial Commission, supra.
IT IS THEREFORE ORDERED that the ALJ’s orders dated October 8, 2003, and August 15, 2003, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Randy Holmes, Orange, TX, R K Mechanical, Denver, CO, Jackie Slade, CR, Mid-Century Insurance Company, Denver, CO, Christian M. Lind, Esq., Denver, CO, (For Respondents).