W.C. No. 4-733-071.Industrial Claim Appeals Office.
March 9, 2009.
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FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) dated October 27, 2008, that awarded the claimant permanent partial disability benefits, disfigurement benefits and imposed penalties against the uninsured employer. We affirm.
On April 24, 2008, ALJ Walsh issued an order finding the claim to be compensable, determining average weekly wage and ordering the uninsured employer to pay medical benefits and temporary total disability benefits. The April 24, 2008 order directed the employer to deposit $16,000 with the Division of Workers’ Compensation or file a bond in that amount within 10 days. A hearing was held before ALJ Stuber on October 9, 2008 on the issue of permanent partial disability benefits, disfigurement benefits and penalties against the employer. The claimant sought a penalty pursuant to § 8-43-304(1) C.R.S. 2008 for violation of ALJ Walsh’s April 24, 2008 order to post a bond or deposit $16,000. ALJ Stuber found that the employer failed to comply with the April 24, 2008 order and imposed penalties of $20 per day for the 157 days of the violation up to the day of the hearing before ALJ Stuber on the issues of penalties.
In its petition to review the employer only argues that its insurance broker failed to supply all the needed paper work to Pinnacol Assurance, which delayed creation of coverage for workers’ compensation exposure. The employer contends it is seeking recovery with the errors or omissions carrier of the insurance broker. Under the circumstances here, even assuming the factual accuracy of the employer’s contention, we perceive no basis on which to interfere with the ALJ Stuber’s order.
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The record contains a second order from ALJ Walsh dated April 24, 2008, nunc pro tunc February 22, 2008. This order by ALJ Walsh granted a Motion for Summary Judgment filed by Pinnacol Assurance determining that a policy of workers’ compensation insurance issued by it was not effective until August 11, 2007 and no valid policy of insurance was in place for the employer covering the injuries occurring to the claimant on August 10, 2007. There is no suggestion by the employer that either of the orders by ALJ Walsh were appealed. Therefore, the determinations made in those two orders that the claimant is owed benefits and that the employer was uninsured are final. The issue of whether the employer has some right against its insurance broker is irrelevant to the present appeal of ALJ Stuber’s ordering the employer to pay benefits to the claimant and awarding penalties for the employer’s failure to comply with ALJ Walsh’s order.
In addition, we note that the record contains no transcripts of the hearing before ALJ Stuber. 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. 2008. 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).
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. Here, we must presume the pertinent findings of fact made by ALJ Stuber are supported by substantial evidence. However, we have also reviewed the record and ALJ Stuber’s findings of fact and conclusions of law. A report from Dr. Watson supports the award of 27 percent permanent impairment of the claimant’s upper extremity and the disfigurement award. Exhibit 5 at 18-20. The orders in the record issued by ALJ Walsh support imposition of penalties. The penalty of $20 per day imposed by ALJ Stuber is well below the five hundred dollars maximum under § 8-43-304. ALJ Stuber’s findings are sufficient to permit appellate review and the findings support the conclusion that the claimant is entitled to permanent partial disability benefits, disfigurement benefits and that penalties were properly imposed on the employer. The ALJ correctly applied the law and did not err in requiring the uninsured employer to deposit a sum of money or in lieu therefore, file a bond. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 27, 2008 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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MARCOS ZURITA, 46 MCGREGOR ROAD, PUEBLO, CO, (Claimant), DONLEY LANDSCAPING SUPPLY, Attn: FRANK MCKNIGHT, OWNER, PUEBLO, CO, (Employer), STEVEN U MULLENS, PC, Attn: RICHARD LAMPHERE, ESQ., COLORADO SPRINGS, CO, (For Claimant), FRANK MCKNIGHT, C/O: D/B/A DONLEY LANDSCAPING SUPPLY, PUEBLO, CO, (For Respondents).
PETERSEN FONDA, PC, Attn: JAMES R. GERLER, ESQ., PUEBLO, CO, (Other Party).
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