W.C. No. 4-605-974.Industrial Claim Appeals Office.
March 31, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) insofar as it reduced compensation by fifty percent for violation of a safety rule. We affirm.
The ALJ’s findings may be summarized as follows. The employer maintained a safety rule which prohibited employees from placing portions of their bodies near the moving parts of a “pinch machine.” The safety rule was orally communicated to the claimant, and reinforced by three warning signs.
Crediting the testimony of the respondents’ accident investigation expert, the ALJ found the claimant’s hand was caught in the “rollers” of the pinch machine after the hand slipped off a “support bar.” The ALJ concluded the claimant was aware of the safety rule and intentionally performed the prohibited conduct by resting his hand on the support bar. Consequently, the ALJ imposed a fifty percent reduction of temporary disability benefits in accordance with section 8-42-112(1)(b), C.R.S. 2004.
The claimant filed a petition to review citing general allegations of error concerning the sufficiency of the evidence and the ALJ’s application of the law to the facts. However, the claimant did not file a brief in support of the petition to review. The claimant also designated a transcript of the hearing. However, the claimant failed to pay for the transcript and the ALJ issued an Order to Show Cause why the request for transcript should not be considered withdrawn. The claimant responded that he needed additional time to procure funds to purchase the transcript and an extension of time was granted. The claimant did not procure the transcript in a timely fashion and a second Order to Show Cause was issued. When the claimant failed to file a timely response the request for transcript was treated as withdrawn.
The question of whether the respondents proved the claimant willfully violated a safety rule is one of fact for determination by the ALJ Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715
(Colo.App. 1995); City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990). Consequently, we must uphold the ALJ’s resolution of the issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. Where, as here, the appealing party fails to procure a transcript, we must presume the ALJ’s findings of fact are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988). Further, the ALJ’s order reflects a correct application of the law to the facts. See Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Stockdale v. Industrial Commission, 76 Colo. 494, 232 P. 669 (1925).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 14, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Robert M. Socolofsky
Ruben Portales, Fort Collins, CO, Stu Hicklin, Southwestern Corporation, Fort Collins, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Bob L. Ring, Esq., Fort Collins, CO, (For Claimant).
Ronda K. Comings, Esq. and T. Paul Krueger, II, Esq., Fort Collins, CO, (For Respondents).