W.C. No. 4-548-307.Industrial Claim Appeals Office.
May 25, 2004.
FINAL ORDER
The respondent petitioned for review of orders of Administrative Law Judge Henk (ALJ Henk) and Administrative Law Judge Friend (ALJ Friend) which awarded workers’ compensation benefits and penalties. We affirm.
A hearing was held before ALJ Friend on June 24, 2003, which the respondent did not attend. Thereafter, ALJ Friend issued an order dated July 9, 2003, which determined the claimant suffered a compensable occupational disease and required the respondent to pay medical benefits and temporary disability benefits increased by 50 percent for the respondent’s failure to carry workers’ compensation insurance. The respondent timely appealed the order of ALJ Friend and alleged inter alia, that it was denied notice of the hearing on June 24.
The respondent also moved for a new hearing on grounds it lacked notice of the June 24 hearing. A hearing on the motion was scheduled for October 22.
In the interim a briefing schedule was issued for the petition to review the order of ALJ Friend. However, the respondent was granted an extension up to 20 days after the entry of the order from the October 22 hearing to file an opening brief.
Based upon the evidence presented at a hearing on October 22, 2003, ALJ Henk determined the respondent failed to prove it did not have advance notice of the June 24 hearing. Therefore, ALJ Henk issued an order dated December 9, 2003, which denied the request for a new hearing. The respondent filed a Renewed Motion for A New Trial which was denied by ALJ Henk on January 27, 2004. The respondent filed a petition to review the January 27 order.
I.
On review of the November 17 order of ALJ Henk, the respondent admits ALJ Henk was not persuaded the respondent overcame the presumption that it received notice of the June 24, 2003 hearing by receipt of a Notice of Hearing mailed on April 4, 2003, by the Division of Administrative Hearings. Instead, the respondent contends ALJ Henk failed to consider its alternative theories concerning its allegation that it did not have notice of the hearing. We perceive no basis to disturb the order of ALJ Henk.
Initially, we note the claimant’s contention that we lack jurisdiction to review the November 17 order because the respondent failed to file a petition for review within twenty days of the date of the certificate of mailing of the order as required by § 8-43-301(2), C.R.S. 2003. As argued by the claimant, the record contains no pleading captioned “petition to review” ALJ Henk’s order dated November 17, 2003. However, on January 27, 2004, ALJ Henk denied the claimant’s motion to dismiss the respondent’s appeal of the November 17 order. In so doing, ALJ Henk implicitly determined that the respondent’s “Renewed Motion for a New Hearing,” dated December 2, 2003, constituted a timely petition to review the November 17 order.
We assume, arguendo, that the “Renewed Motion for a New Hearing” is sufficient to satisfy the requirements of §8-43-301(2), for review of the November 17 order. See Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994); Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970). However, we perceive basis to set aside the order denying the respondent’s motions for a new hearing.
We reject the respondent’s contention ALJ Henk did not consider whether the respondent reasonably relied on pleadings filed to dismiss Pinnacol Assurance from the case to conclude there was no hearing set in the case. ALJ Henk explicitly cited the respondent’s contention. However, ALJ Henk was apparently not persuaded. See Findings of Fact 2, 3; Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966) (ALJ is not required to explicitly discuss defenses or theories he rejected) Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ only required to make specific findings on evidence found persuasive and determinative, by not citing testimony ALJ implicitly rejected it).
Further, ALJ Henk found the respondent had actual notice of the June 24 hearing by receipt of the April 4, 2003 Notice of Hearing. Consequently, it was unnecessary for ALJ Henk to determine whether the respondent was denied advance notice of the hearing by the claimant’s failure to contact the respondent on March 19, 2002, to set the hearing. See Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994) (issue moot if resolution cannot have any effect upon an existing controversy).
Moreover, ALJ Henk’s orders denying the request for a new hearing are supported by her findings of fact and the findings are supported by substantial evidence in the record. Therefore, the orders must be upheld on review. Section 8-43-301(8), C.R.S. 2003.
II.
For his part, the claimant requests an award of costs and attorney fees on grounds the respondent’s appeal of the orders of ALJ Henk is “frivolous.” We deny the request.
Section 8-43-301(14), C.R.S. 2003, provides that attorney fees may be awarded against an attorney who submits a petition to review or brief in support of a petition “which is not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.”
As stated above, the claimant’s petition to review the order of ALJ Friend included the respondent’s allegation that it is entitled to a new hearing. ALJ Henk then treated the respondent’s December 2 Renewed Motion for a New Hearing as the respondent’s request to preserve its contention that ALJ Friend erroneously awarded benefits in the absence of the respondent’s advance notice of the June 24 hearing. Under these circumstances, we are not persuaded the claimant’s appeal of ALJ Henk’s order denying its request for a new hearing warrants an award of costs or attorney fees.
III.
Concerning the order of ALJ Friend, the respondent’s petition to review contains only general allegations of error. See §8-43-301(8). Further, the respondent did not file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Under § 8-43-301(8), C.R.S. 2003, we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and ALJ Friend’s findings of fact. ALJ Friend’s findings are sufficient to permit appellate review, and the findings indicate that ALJ Friend resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Further, ALJ Friend’s findings are supported by substantial evidence in the claimant’s testimony and the findings support the award of benefits.
IT IS THEREFORE ORDERED that the ALJs’ orders dated July 9, 2003, December 9, 2003 and January 27, 2004 are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
David Cain
Kathy E. Dean
Max Sanchez, Fort Lupton, CO, James Barsness, House of Smoke, Inc., Fort Lupton, CO, Mark D. Elliott, Esq., Arvada, CO, (For Claimant).
Regina M. Walsh Adams, Esq., Greeley, CO, (For Respondents).