W.C. No. 4-679-492.Industrial Claim Appeals Office.
November 14, 2007.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated June 26, 2007, that denied the claimant’s claim for further permanent partial disability benefits. Because the factual findings are insufficient to permit appellate review we remand for entry of additional findings and a new order.
A hearing was held on the issue of whether the claimant’s request for a Division-sponsored independent medical examination (DIME) was timely and whether the respondents were liable for additional permanent partial disability benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On April 3, 2006, the respondents filed a general admission of liability and on July 3, 2006, the claimant filed an application for hearing endorsing the issues of compensability, medical benefits, average weekly wage, and temporary total disability benefits. On August 22, 2006, prior to the hearing held pursuant to the claimant’s application, the respondents filed a final admission of liability admitting for permanent partial disability benefits based upon impairment of eight percent of the whole person. The hearing was held on October 17, 2006, before ALJ Stuber, on the disputed issues of the claimant’s average weekly wage and his entitlement to temporary total disability benefits. On December 6, 2006, the claimant filed an application for a DIME and on December 27, 2006 he filed an objection to the final admission of liability. By order entered on February 20, 2007 a prehearing administrative law judge (PALJ) struck the request for a DIME.
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Based upon his factual findings the ALJ determined that the PALJ properly struck the application for a DIME. The ALJ reasoned that the claimant failed to object in a timely manner to the final admission of liability filed on August 22nd insofar as it admitted for permanent partial disability benefits, and failed to timely request a DIME following the August 22nd final admission. The ALJ concluded that the August 22nd final admission is binding on all parties with respect to permanent partial disability benefits.
We also note that, although the ALJ entered no factual findings in this regard, the record also contains a final admission dated December 7, 2006. Its actual filing appears to be uncontested by either party. Both parties refer to this subsequent final admission in their respective briefs, and both parties appear to dispute the legal and factual effect of this final admission. However, the ALJ did not refer to the December final admission in his order.
The claimant appealed the ALJ’s order and argues that the August 22nd final admission was “fraudulent” because it was only filed to preclude a claim for penalties and because all parties knew that it admitted for an incorrect average weekly wage. The claimant further argues that under these circumstances he was not required to object to the August 22nd final admission in order to preserve his right to a DIME. As we understand the claimant’s argument, he asserts at least in part that the failure to object to permanency with regard to the August final admission did not preclude him from obtaining a DIME following th December final admission. However, the ALJ appeared only to adjudicate the timeliness of the application for a DIME with regard to the August final admission. Because we cannot ascertain from the ALJ’s findings his conclusions regarding the effect of the December final admission, it is necessary to remand this matter for further findings.
It may be, of course, that the filing of the final admission in December was irrelevant to the issue or issues raised at the hearing, that no party argued that it had any factual or legal effect on the resolution of those issues, and that the sole dispute to be resolved by the ALJ was whether the application for the DIME made by the claimant on December 6, 2006, was timely with regard to the August final admission. However, the absence of a transcript or of written position statements renders it impossible for us to ascertain whether the ALJ overlooked the December final admission or whether it was not relevant to any issue raised. (We note that the ALJ’s written statement of the issue raised for hearing was whether the application for the DIME was timely “[u]nder the circumstances present here.” Again, in the absence of any factual finding addressing the December final admission, it is impossible for us to determine whether those “circumstances” included that admission or merely the August final admission.) Moreover, given the parties’ arguments on appeal concerning the effect of the December final admission, in our view it is doubtful that the parties agreed at and before
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the hearing that it had no significance to the issues raised. As noted, the record contains the December final admission, it is apparently undisputed that it was filed, and both parties appear to view it as significant in their respective legal arguments on appeal. However, the ALJ’s failure to enter any factual findings regarding the December final admission leaves us to speculate concerning his ruling, if any, regarding its legal and factual significance to the claimant’s entitlement to a DIME. We also note that the ALJ did not reserve further issues for future determination. Therefore, we cannot surmise that the ALJ contemplated that issues relevant to the December final admission were to be litigated and decided at some future time. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
We are aware that it is generally the obligation of the appealing party to provide a record sufficient to disclose error and to permit review, and that the failure to provide a transcript of the hearing raises a presumption that factual findings are supported by the record Fleet v. Zwick, 944 P.2d 480 (Colo.App. 1999); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). However, here the difficulty with our review of the order is the absence of factual findings rather than whether the findings entered are supported by the evidence. The findings must be sufficient to permit us to review the legal and factual bases of the award or denial of benefits. See §8-43-301(8), C.R.S. 2007. Here, the December final admission of liability was omitted from the ALJ’s findings of fact, from his conclusions, and from his discussion of the bases for the order. We are unable to ascertain the role it played in the ALJ’s denial of the claimant’s request for a DIME and his claim for additional permanent partial disability benefits. Accordingly, additional findings must be entered clarifying this issue.
On remand the ALJ should enter findings of fact sufficient to permit us to review the ALJ’s affirmance of the PALJ’s order and the related denial of additional permanent partial disability benefits. The ALJ’s factual findings should be sufficient to permit review of the legal and factual effect, if any, of the December final admission of liability on the claimant’s entitlement to a DIME. If, in the ALJ’s view, that final admission was not relevant to any issue properly and timely raised for adjudication the ALJ’s order on remand should clarify that circumstance. Of course, nothing in this order should be construed as expressing an opinion concerning the outcome that should be reached on remand. The purpose of the remand is solely to clarify the legal and factual bases of the order and to permit our appellate review of it.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 2007, is set aside and the matter remanded for entry of a new order consistent with the foregoing.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
FABIAN RIVERA, 2505 VERDE DR #333, COLO SPRINGS, CO, (Claimant)
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POWERS THERMAL INSULATION, COLO SPRINGS, CO, (Employer)
ZURICH AMERICAN INSURANCE CO, COLO SPRINGS, CO, (Insurer)
ALEXANDER RICCI, P.C., Attn: WILLIAM A. ALEXANDER, ESQ., COLO SPRINGS, CO, (For Claimant)
TREECE, ALFREY, MUSAT BOSWORTH, P.C., Attn: CHRISTOPHER P. AHMANN, ESQ., DENVER, CO, (For Respondents)
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