W.C. No. 4-518-263.Industrial Claim Appeals Office.
March 31, 2005.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated October 27, 2004. We remand the matter for further proceedings concerning the record on review.
The ALJ’s order denied temporary disability and permanent medical impairment. The order contains a certificate of mailing which states the order was mailed to the claimant’s attorney at “1600 Ogden St., Denver, CO 80218.” The claimant timely petitioned for review and requested the preparation of the hearing transcript. The transcription request listed the address of the claimant’s attorney as “1600 Ogden Street, Denver, Colorado 80218.”
On December 18, the ALJ issued a Show Cause order pursuant to the Rules of Procedure, Part VII(C)(2), 7 Code Colo. Reg. 1101-3, Rule of Procedure VII (C)(2), 7 Code Colo. Reg. 1101-3 at 10, (when arrangements to pay for a transcript have not been made with a court reporter on a timely basis, an ALJ may determine the transcript has been withdrawn), which afforded the claimant 10 days to show cause why the transcript request should not be withdraw for the claimant’s failure to make payment arrangements for the transcription services. The Show Cause Order contains a certificate of mailing which stated that the order was mailed to the claimant’s attorney at “14426 E. Evans Avenue, Aurora, Colorado 80014-1480.”
No response to the Show Cause Order was filed by the claimant. Consequently, on February 3, 2005, the ALJ ordered the transcript request withdrawn. The February 3 order reflects that it was mailed to the claimant’s attorney at “14426 E. Evans Avenue, Aurora, CO 80014-01480.” The same day, the ALJ “Green-sheeted” the record to us for review.
Subsequent to our receipt of the record, the claimant’s attorney filed a “Motion for Reconsideration” of the ALJ’s February 3 order withdrawing the transcript. In support the claimant’s attorney contends he never received either the December 18 Show Cause Order or the February 3 order withdrawing the transcript because the orders were mailed to the wrong address. Consequently, the claimant’s attorney proceeded with payment of the transcript and filed the transcript in the record on January 18, 2005. Furthermore, the claimant argues his request for review of the ALJ’s October order is prejudiced without the hearing transcript.
Because the record was transmitted to us prior to the filing of the claimant’s Motion for Reconsideration, the ALJ has not had an opportunity to consider the claimant’s arguments. Further, the claimant has made a factual assertion, which if true, establishes that he was not afforded an adequate opportunity to have the hearing transcript made part of the record on review. Moreover, the record does not contain any evidence which directly contradicts the claimant’s assertions. Indeed, the record is consistent with the claimant’s assertions. However, we have no authority to accept or reject the factual assertions on review. See §8-43-301(8), C.R.S. 2004 (restricting the Panel’s authority concerning factual matters to a review of the ALJ’s findings); Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987). Under these circumstances, the matter must be remanded to the ALJ for ruling on the claimant’s Motion for Reconsideration.
On remand, the ALJ shall determine whether the claimant had notice of the December 18 Show Cause Order. In so doing, the ALJ shall not reject respondents’ counsel’s factual allegations unless a hearing is held Trujillo v. Industrial Commission, supra. If the ALJ determines the claimant did not have timely notice of the Show Cause Order, the ALJ shall also determine whether the claimant made payment arrangements for preparation of the transcript, and whether the transcript should be included in the record on review. Conversely, if the ALJ determines the claimant was afforded adequate notice of the Show Cause Order, the ALJ shall make findings to support that determination and shall retransmit the matter to us for immediate review.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
James Rutledge, Castle Rock, CO, Pro Disposal, Littleton, CO, Star Insurance Company, c/o Angie Hancock, Gallagher Bassett Services Inc., Englewood, CO, Michael H. Kaplan, Esq., Denver, CO, (For Claimant).
Marsha A. Kitch, Esq., Evergreen, CO, (For Respondents).