W.C. No. 4-520-733Industrial Claim Appeals Office.
January 28, 2003
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied a claim for temporary disability benefits because the claimant was found to have been responsible for a termination of employment. We remand the matter to afford the respondents an opportunity to file an amended brief.
The claimant filed a timely Petition for Review and Designation of Record requesting that the record on appeal include “all testimony.” However, on October 15, 2002, a Legal Technician for the Division of Administrative Hearings (DOAH) issued a letter stating the claimant had not paid the deposit for preparation of the transcript and a transcript would not be included in the record. The letter then established a briefing schedule. On October 30, 2002, the court reporter issued a letter to claimant’s counsel, with a copy to respondents’ counsel, stating the transcript had been lodged and establishing a new briefing schedule.
On November 21, 2002, the claimant filed a brief which argues the sufficiency of the evidence to support the ALJ’s order. This brief contains citations to a transcript of hearing which is contained in the record.
The respondents filed an answer brief on December 3, 2002. The answer brief states the “claimant did not designate the transcript of the hearing as part of the record on appeal, respondents did not receive a copy of the hearing transcript, as one was presumably not prepared.” The respondents’ brief contains references to documents contained in the record but none to the transcript.
Under these circumstances, we conclude the matter should be remanded to the DOAH to afford the respondents an opportunity to file an amended brief in opposition to the petition to review. Section 8-43-301(9), C.R.S. 2002 (panel may issue orders concerning filing of briefs). The respondents are technically incorrect in stating the claimant did not “designate” a transcript since the claimant requested that the record include all “testimony.” However, in light of the conflicting letters issued by the Legal Technician and court reporter, the respondents’ apparent confusion regarding the state of the record is understandable. Consequently, the matter is remanded to the DOAH with directions to establish a briefing schedule which allows the respondents to file an amended brief in opposition which contains appropriate references to the hearing transcript. Rules of Procedure VII (D)(2)(c), and (D)(3), 7 Code Colo. Reg. 1101-3 at Pp. 18-19 (briefs shall contain page references to transcript where pertinent testimony may be found). Once the respondents file the amended brief, or the time for filing runs without the filing of a brief, the matter shall be retransmitted for review.
IT IS THEREFORE ORDERED that the matter is remanded to the DOAH for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
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David Cain
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Kathy E. Dean
Copies of this decision were mailed ________January 28, 2003 ___ to the following parties:
Antonio L. Mellon, 120 2nd St., Ft. Collins, CO 80524
Holnam, Inc., P.O. Box 1548, LaPorte, CO 80535
Pacific Employers’ Insurance, c/o Wes Johnson, ACE/ESIS, Inc., P.O. Box 911, Portland, OR 97207
Gina Gradecki, Esq. and Bob Ring, Esq., 2550 Stover St., Bldg. C, Ft. Collins, CO 80525 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: ________A. Hurtado________________