W.C. No. 4-512-314Industrial Claim Appeals Office.
November 25, 2002
ORDER OF REMAND
This matter has been remanded by the court in an order dated November 19, 2002, for further proceedings concerning allegations raised in the claimant’s Notice of Appeal from our order dated October 25, 2002. We remand the matter to the Division of Administrative Hearings (DOAH) for further proceedings.
On January 10, 2002, Administrative Law Judge Harr (ALJ) issued an order which determined the claimant failed to prove a compensable low back injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. The claimant timely appealed.
The claimant’s January 31, 2002, Petition to Review designated the January 9, 2002 hearing transcript as part of the record on review of the ALJ’s order . However, on July 2, 2002, a court reporter issued a notice of briefing schedule which indicated no transcript was prepared “due to a lack of payment.” The notice afforded the claimant twenty days to file a brief in support of the Petition to Review. On July 18, 2002, the claimant requested a 45 days extension of time to file a brief, in part, asserting that the “transcript for the original court date” still needed to be obtained. The motion was granted on August 2, 2002.
The matter was subsequently “Green” sheeted to us on October 1, 2002. The record transmitted to us did not contain the hearing transcript or a brief in support of the Petition to Review. Our order dated October 25, 2002, affirmed the ALJ’s order.
The claimant’s Notice of Appeal alleged she paid for the hearing transcript by August 7 and no transcript had been delivered as of November 4, 2002. On November 14, 2002, we received the hearing transcript, which was dated November 7, 2002.
Section 8-43-301(2), C.R.S. 2002, provides that the appealing party shall file a petition to review within twenty days of the date of the certificate of mailing of the ALJ’s order and “at the same time, order any transcript relied upon for the petition to review, arrange with the hearing reporter to pay for the same and notify opposing parties of the transcript ordered.” Subsection (3) states that if transcripts are ordered, the ALJ cannot rule on the Petition to Review “until the transcripts are lodged with the division.”
The claimant’s allegations, if credited, could support a finding that the transcript was properly requested and the ALJ prematurely transmitted the matter to us for review. Because the assertions are factual in nature, we cannot accept or reject them on appeal. See § 8-43-301(8), C.R.S. 2002. Furthermore, unless the record contains evidence which directly contradicts the claimant’s assertions, it is improper to summarily reject them. See Pueblo School District No. 60 v. Clementi, 776 P.2d 1152 (Colo.App. 1989); Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987). Under these circumstances, it is necessary to remand the matter to the DOAH to conduct further proceedings concerning the claimant’s assertions that the hearing transcript is part of the record on review of the January 10 order. Cf. Loeffler v. Reeder,
W.C. No 2-940-761, September 14, 1992; Stopinsek v. Arrow Graphics, W.C. No. 4-103-645, July 10, 1992 (cases remanded for factual findings resolving appellants’ assertions that they did not receive notice of the hearing).
If on remand the ALJ determines the November 7 hearing transcript is part of the appellate record, the ALJ shall issue a new briefing schedule which affords the claimant an opportunity to file a brief in support of the Petition to Review. After affording the respondents an opportunity to file an opposition brief, the ALJ shall then take further action as provided by § 8-43-301(5), C.R.S. 2002. If the ALJ determines the transcript is not part of the appellate record, the ALJ shall enter an order to that effect and retransmit the file to us.
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
____________________________________
David Cain
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Kathy E. Dean
Copies of this decision were mailed ____________November 25, 2002 ___________to the following parties:
Angelia Rudolph, 1412 Connecticut Pl., Ft. Collins, CO 80538
All American Kan Build, c/o Heartland Homes 7 Willow Wood, P. O. Box 104, Lees Summit, MO 64063-0104
Transportation Insurance, c/o CAN Insurance Co., 10333 E. Dry Creek Rd., Englewood, CO 80112
Employers Mutual Casualty Co., P. O. Box 441098, Aurora, CO 80044-1098
CNA Insurance Co., P. O. Box 17369 T. A., Denver, CO 80217
Marc F. Bendinelli, Esq., 11184 Huron St., #10, Northglenn, CO 80234 (For Claimant)
John M. Lebsack, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondents All American Kan Build and Transportation Insurance)
Lynda S. Newbold, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents All American Kan Build and Employers Mutual Casualty Co.)
BY: A. Hurtado