W.C. Nos. 3-986-865 AND 4-226-005Industrial Claim Appeals Office.
May 24, 1999.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wells (ALJ) insofar as the ALJ ruled that the claimant “is barred from presenting evidence regarding fibromyalgia and repetitive strain of wrists and forearms under a new claim.” We remand the matter for completion of the record.
In November 1994, the claimant filed a claim for benefits alleging bilateral elbow pain, low back pain, and pain and numbness in her right leg. The claim for these injuries was designated as W.C. No. 4-226-005. The respondent admitted liability for the back and leg problems, but contended that the claim for upper extremity pain was barred by the claimant’s full and final settlement of a prior workers’ compensation claim. The prior claim was designated as W.C. No. 3-986-865.
A hearing was held before the ALJ on February 18, 1998. Although no testimony was taken and no documents were formally admitted as evidence, counsel for both parties drew the ALJ’s attention to various records concerning the claimant’s medical treatment prior to the settlement of W.C. No. 3-986-865. These records included reports of Dr. Nordstrom and Dr. Matthews. (Tr. pp. 9-15).
On April 24, 1998, the ALJ entered the order concluding that the claimant’s settlement of W.C. No. 3-986-865 bars her from pursuing W.C. No. 4-226-005 insofar as the claim involves compensation for upper extremity pain. In so doing, the ALJ made explicit reference to several medical records of Dr. Nordstrom. (Findings of Fact 3 and 4).
On review, the claimant contends the ALJ erroneously interpreted the scope of the settlement in W.C. No. 3-986-865, and improperly precluded her from presenting evidence to establish that she suffered a “new injury” following the settlement. The respondents argue the evidence establishes the claimant did not sustain a “new injury,” and that the symptoms for which she now seeks compensation were included in the settlement. Both parties have stapled medical records to their briefs, but these records do not encompass all of the records mentioned in the ALJ’s order.
Our review of the file reveals that the record does not contain most of Dr. Nordstrom’s medical reports mentioned in findings 3 and 4 of the ALJ’s order. In fact, the record does not contain any medical records from Dr. Nordstrom and Dr. Matthews except for those attached to the parties’ briefs.
Generally, attachments to briefs are not considered evidence, and may not substitute for that which must appear of record Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Thus, we can attach no significance to the documents which the parties submitted as “exhibits” to their briefs. However, it is apparent from the record that the ALJ considered documentary evidence at the hearing and in his order. The record does not contain the documentary evidence considered by the ALJ, and it is impossible to evaluate the arguments without reviewing this evidence. Consequently, the matter must be remanded for completion of the record by inclusion of all documentary evidence considered by the ALJ at the hearing.
IT IS THEREFORE ORDERED that the matter is remanded to the Division of Administrative Hearings for completion of the record. 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 May 24, 1999 to the following parties:
Patricia A. Vega, 3954 Iron Horse Trail, Colorado Springs, CO 80917
City of Colorado Springs, 701 N. Circle Dr., Colorado Springs, CO 80909
Cynthia M. Pring, Esq., P. O. Box 60219, Colorado Springs, CO 80960-0219 (For Claimant)
Diane M. Astourian, Esq., P. O. Box 6094, Colorado Springs, CO 80934-6094 (For Claimant)
Chad J. Hessel, Esq., 108 East St. Vrain, #20, Colorado Springs, CO 80903 (For Respondent)
By: A. Pendroy