W.C. No. 4-382-862Industrial Claim Appeals Office.
June 14, 1999.
FINAL ORDER
The pro se respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) which found that the claimant sustained a compensable injury, determined the claimant’s average weekly wage, awarded temporary disability and medical benefits, and assessed penalties for failure timely to admit or deny liability and failure to insure. We affirm.
The ALJ’s order reflects that the hearing was held on September 15, 1998, but the respondent failed to appear. In his order, the ALJ credited the claimant’s testimony and certain medical evidence. Thus, the ALJ determined the claimant sustained compensable carpal tunnel syndrome and awarded benefits and penalties accordingly.
Following entry of the order the respondent filed a petition to review pointing out that it was not able to present evidence to contradict the claimant’s case. The petition also “reserved” the right to “speak with the court reporter about acquiring a transcript” of the hearing. However, the respondent failed to procure a transcript. Subsequently, the respondent filed a brief in support of the petition to review, although the brief was not served on the claimant’s attorney.
In the brief, the respondent states that “I missed the scheduled hearing” because “I simply put the date in my DayTimer incorrectly and showed up for our hearing 24 hours late.” The brief requests a new hearing to contradict the claimant’s testimony and evidence concerning the average weekly wage and the cause of the carpal tunnel syndrome.
The ALJ had discretionary authority to hold another hearing and receive additional evidence in light of the respondent’s failure to appear. Section 8-43-301(5), C.R.S. 1998. However, in exercising this discretion, the ALJ was free to consider whether the need for an additional hearing could have been avoided by the exercise of due diligence, as well as the expense and inconvenience to the claimant if an additional hearing were held See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). In this regard, we note that pro se
litigants are held to the same legal standards and procedural requirements as parties represented by counsel. Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (1980).
Here, the ALJ implicitly denied the respondent’s request for an additional hearing by transmitting the matter for review Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983). We cannot say the ALJ abused his discretion in denying the request for another hearing because the respondent was solely responsible for its failure to appear at the initial hearing. Further, delaying resolution of the case to permit an additional hearing would place an unusual burden on the claimant considering the respondent’s failure to carry workers’ compensation insurance.
We also reject the respondent’s arguments concerning the substance of the ALJ’s findings of fact and conclusions of law. Because the respondent failed to procure a transcript of the hearing, we must presume that the ALJ’s findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988). Further, the factual assertions contained in the respondent’s brief cannot substitute for that which must appear of recor . Subsequent Injury Fund v. Gallegos, 746 P.2d 71
(Colo.App. 1987). It follows that there is no basis for setting aside the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 7, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed June 14, 1999 to the following parties:
Aretha McMillan, 738 E. Platte Ave., Colorado Springs, CO 80903
W. Scott Berry, Just Cuts, Inc., P. O. Box 6248, Steamboat Springs, CO 80477
Subsequent Injury Fund, Division of Workers’ Compensation — Interagency Mail
Kathleen Pennucci, Special Funds Unit, Division of Workers’ Compensation — Interagency Mail
Just Cuts, Inc., Attn: Sansi L. Berry, 3715 Saints Ct., Colorado Springs, CO 80904-4400
Just Cuts, Inc., 1027 N. Academy Blvd., Colorado Springs, CO 80909
James A. May, Esq., 105 E. Moreno, #101, Colorado Springs, CO 80903 (For Claimant)
By: jls