W.C. No. 4-424-397Industrial Claim Appeals Office.
October 16, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Snider (ALJ) which ordered the claimant to undergo a Division-sponsored independent medical examination (DIME), denied certain claims for penalties and assessed other penalties. We remand to determine whether the claimant is entitled to preparation of a transcript, and completion of the record if necessary.
This case has a complex procedural history. Suffice it to say that after a treating physician assessed the claimant’s medical impairment, the respondents sought a DIME on the issue of impairment. The claimant sought a hearing arguing the respondents’ failure to comply with several provisions of § 8-47-107.2, C.R.S. 2002, and a Rule of Procedure, disqualified the respondents from seeking the DIME, and, therefore, the respondents are bound by the treating physician’s rating. The claimant also sought penalties for various violations of the Act and the Rules of Procedure.
The ALJ ruled that, although the respondents violated portions of the statute and a rule, the violations did not deprive the respondents of the right to a DIME. The ALJ also assessed penalties for the violations, and denied the claimant’s request for other penalties.
The claimant filed a timely petition to review alleging the ALJ erred in requiring the claimant to undergo a DIME and in denying several of the claims for penalties. The claimant designated a transcript of the hearing as part of the record on appeal. The claimant subsequently moved for an order holding the DIME in abeyance pending resolution of the appeal. However, the motion was denied.
On July 8, 2002, an administrative assistant at the Division of Administrative Hearings (DOAH) mailed a letter to the attorneys of record establishing a briefing schedule. The letter states the transcript of the May 21, 2001 hearing was canceled.
On July 26, 2002 the claimant filed an Opening Brief. The brief states the claimant underwent a DIME in September 2001 and was found not to be at maximum medical improvement (MMI). Consequently, the brief states that some issues are not yet “ripe.” The brief also states the following:
It should be noted that the Claimant and Claimant’s counsel never withdrew their request for the transcript, but asked that the transcript be held in abeyance with the verbal agreement of Respondent’s [sic] counsel, hoping that Mr. Koivu would reach MMI again shortly and that the matter could be resolved short of further appellate process.
The brief requests that the matter be remanded for the claimant to “re-contact the court reporter to have the transcript available.” The respondents did not file a brief.
We are unable to ascertain whether the claimant was afforded a fair opportunity to have a brief included in the record on a appeal. Consequently, we remand for that determination and inclusion of the transcript and new briefs if necessary.
When a transcript is ordered as part of the record on appeal, the ALJ may not rule on the petition to review until the transcript is complete. Section 8-43-301(3), C.R.S. 2002. The party requesting the transcript is to make arrangements for payment of the reporter. Section 8-43-301(2), C.R.S. 2002.
Rule of Procedure VII (C)(2), 7 Code Colo. Reg. 1101-3, provides as follows:
When arrangements to pay for a transcript have not been made with a court reporter on a timely basis, the court reporter shall notify the Division. Upon such notification, an administrative law judge or the director may determine, after reasonable notice to the parties, that the order of the transcript has been withdrawn. An administrative law judge or the director may then issue a briefing schedule pursuant to § 8-43-304, C.R.S.
Rule of Procedure VII (C)(3), 7 Code Colo. Reg. 1101-3 states that a party wishing to cancel the transcript shall notify the court report directly.
Here, claimant’s counsel denies that the request for transcript was withdrawn, as stated in the briefing schedule issued by the administrative assistant. Further, it does not appear from the record that claimant’s counsel was notified by DOAH that it was considering whether to treat the request for the transcript as “withdrawn.”
On remand the ALJ shall determine whether the claimant’s request for a transcript was “withdrawn” under the statute and applicable rules of procedure. The ALJ may conduct a hearing, if necessary, to resolve this question. If a transcript is required, the ALJ shall establish a new briefing schedule once the transcript is complete. If a transcript is not necessary the matter shall be retransmitted for our review.
IT IS THEREFORE ORDERED that the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ David Cain
__________________________________ Kathy E. Dean
Copies of this decision were mailed October 16, 2002 to the following parties:
Jeremy Todd Koivu, 7496 Clay St., Westminster, CO 80030
Fisher Chevrolet, Inc., P. O. Box 1029, Boulder, CO 80306-1029
Hartford Fire Insurance Co., 7670 S. Chester St., Englewood, CO 80112
Hartford Insurance Group, P. O. Box 22815, Denver, CO 80222
Bob Klingler, Special Funds, Tower 2, #630, Division of Workers’ Compensation — Interagency Mail
Shelley P. Dodge, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents)
By:______A. Hurtado______