W.C. Nos. 4-382-946, 4-384-988Industrial Claim Appeals Office.
March 23, 2001
ORDER OF REMAND
Respondent Pinnacol Assurance (Pinnacol) seeks review of an order of Administrative Law Judge Martinez (ALJ) dated April 5, 2000. Pinnacol contends the ALJ erred in determining that principles of collateral estoppel precluded relitigation of the cause of the claimant’s cervical injury or impairment. We remand the matter for clarification and completion of the record.
Resolution of the issue in this case turns on the preclusive effect, if any, of the ALJ’s prior order dated December 11, 1998. The December 11 order was based on a hearing which occurred on September 24, 1998. In its brief in support of the ALJ’s April 5 order, respondent Mid Century Insurance Company (Mid Century) refers extensively to testimony, documents, and depositions received at the September 24 hearing. (Mid Century Brief. pp. 4-7). However, the record submitted for review does not contain a transcript of the September 24 hearing, documentary evidence received at the hearing, or depositions received as evidence at the hearing.
We are unable to ascertain from the transcript of the hearing held on March 23, 2000, whether the evidence mentioned in Mid Century’s brief was before the ALJ or not. Although it does not appear that Mid Century specifically requested the ALJ to take notice of these documents, the ALJ received Rule VIII submissions “in order to complete the record in this matter.” (Emphasis added). (Tr. March 23, 2000, p. 10). Thus, it appears the ALJ may have had access to and reviewed documents, including a transcript of the September 24 hearing, in connection with the April 5 order. Obviously, a transcript of the September 24 hearing would be highly relevant in determining the exact scope of the issues litigated at that time.
Under these circumstances, the matter must be remanded to the ALJ to determine the proper scope of the record on review. If the ALJ considered evidence not contained in the record as presently constituted, including a transcript of the September 24 hearing, documentary evidence submitted at that hearing, and depositions received in connection with that hearing, these documents should be included in the record for our review. The ALJ may hold a hearing, if necessary, to determine the correct contents of the record on review. If the parties and the ALJ are able to reach agreement concerning the scope of the record, a hearing need not be held.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ for clarification and completion of the record in accordance with this order. Once the record is complete, the matter may be retransmitted for our review.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Dona Halsey
Copies of this decision were mailed March 23, 2001 to the following parties:
Timothy R. Simpson, P. O. Box 91, Crawford, CO 81415-0091
Miller Specialties, 2355 Pioneer Rd., Delta, CO 81416-2737
Curt Kriksciun, Esq., CCIA d/b/a Pinnacol Assurance — Interagency Mail (For Respondent Miller Specialties and CCIA d/b/a Pinnacol Assurance)
Mid Century Insurance, Farmers Insurance Exchange, 7535 E. Hampden Ave., #200, Denver, CO 80231
Richard T. Gurley, Esq., 200 Grand Ave., #315, Grand Junction, CO 81501 (For Claimant)
Harry E. Coff, Jr., Esq., 225 N. 5th St., #705, Grand Junction, CO 81501 (For Respondent Mid Century Insurance)
Raymond F. Callahan, Esq., 1660 S. Albion St., #425, Denver, CO 80222-4043
BY: A. Pendroy