W.C. No. 4-721-440.Industrial Claim Appeals Office.
February 4, 2008.
FINAL ORDER
The respondent employer seeks review of an order of Administrative Law Judge Stuber (ALJ) dated October 16, 2007, that dismissed the claim against Pinnacol Assurance as the insurer and found GV RLV, Inc. liable to the claimant as the uninsured employer. We affirm.
We note preliminarily that the employer has filed a “Motion To Reopen Or In The Alternative Brief In Support Of Petition To Review.” Our jurisdiction is limited by § 8-43-301(8), C.R.S. 2007 to a review of the order entered by the ALJ. Therefore, we will treat the pleading filed by GV RLV, Inc. as a brief in support of the petition to review the ALJ’s order of October 16, 2007. A petition under § 8-43-303, C.R.S. 2007 must be filed according to the rules of procedure with the Division of Workers’ Compensation.
The ALJ’s pertinent findings of fact are as follows. In September 2006, the claimant was hired by GV RLV, Inc. to work as a bouncer for the bar and maintenance person for the bar and motel. On December 28, 2006, GV RLV, Inc. was uninsured for workers’ compensation liability. On December 28, 2006 the claimant was asked to remove a bar patron and evict the man from his room in the motel. While performing those duties, the claimant was stabbed in the abdomen. The ALJ concluded that the claimant suffered an injury arising out of and in the course of his employment with the uninsured employer GV RLV, Inc. and awarded benefits.
On appeal, GV RLV, Inc. contends that the claimant was not an employee of GV RLV, Inc. because the bar and the motel were distinct legal entities. GV RLV, Inc. argues that the claimant was not an employee of the bar, but rather an employee of
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the hotel owned by a different person. GV RLV, Inc. further contends that the claimant was injured across the street at a trailer park by a bystander who was trying to defend a woman who the claimant was assaulting.
The record contains no transcripts of the hearing before the ALJ. As a general matter, we must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
GV RLV, Inc. has attached to its brief various documents including an Offense Report from the Pueblo police department and statements from people in support of its argument that the claimant was not injured as found by the ALJ and, also, that the claimant was not their employee. In general, parties are expected to submit their evidence at the time of the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158
(1935). The representations from GV RLV, Inc. and attachments to its brief may not substitute for that which must appear of record Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). However, some of the documents attached to GV RLV, Inc.’s brief were attached to a packet of hearing exhibits apparently submitted by the insurance carrier. The order does not indicate what exhibits were received into evidence. Without the transcript, we are not in a position to know what exhibits were received and which were not received into evidence. In any event, as noted above we must presume without the transcript that the pertinent findings of fact were supported by substantial evidence. Therefore, if the documents were received into evidence it is evident that the ALJ was not persuaded by them.
GV RLV, Inc. argues that although it had been approved for RaeLynn Valverde to appear telephonically at the hearing and testify she was not given the opportunity to be heard. The party seeking to overturn a judgment bears the responsibility for producing a record sufficient to demonstrate that an error has occurred. Otherwise, the regularity of the court’s rulings will be presumed. See Fleet v. Zwick, 994 P.2d 480
(Colo.App. 1999). Here, GV RLV, Inc. failed to procure a transcript. Consequently, we have no basis for determining what transpired at the hearing. See Thornwall v. Colorado Cartridge/Out of Toner, W. C. No. 4-564-779 (June 24, 2004). Under these circumstances, we presume the regularity of the ALJ’s order and the proceedings leading up to it.
Under § 8-43-301(8) we are precluded from disturbing the ALJ’s order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law. The ALJ’s
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factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993).
Here, we have reviewed the record and the ALJ’s findings of fact and conclusions of law. The ALJ’s findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, the ALJ’s findings support the conclusion that the claimant suffered an injury arising out of and in the course of his employment with GV RLV, Inc. The ALJ correctly applied the law and did not err in awarding benefits and finding the uninsured employer liable. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued October 16, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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HAROLD D WILCOX, JR., PUEBLO, CO, (Claimant).
GV RLV INC., Attn: RAELYNN VALVERDE, ALBUQUERQUE, NM, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
JOHN HARRISON, Attn: JOHN HARRISON, PUEBLO, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, Attn: VITO RACANELLI, ESQ., DENVER, CO, (For Respondents).
GV RLV INC., Attn: MARIE FRITZ, PUEBLO, CO, (Other Party).
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