W.C. No. 4-174-355.Industrial Claim Appeals Office.
November 4, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge (ALJ) Walsh dated June 30, 2011, that denied his claim for death benefits against the respondent employer (employer). We affirm.
The employer moved for summary judgment on the issue of its liability for death benefits. The ALJ granted the motion and issued his findings of fact, conclusions of law, and order. According to his decision, the decedent, Ms. Wanda Nichols, was injured on April 16, 1993. A final admission of liability admitted for permanent total disability benefits. Ms. Nichols died on January 19, 2005. On August 4, 2009, the claimant filed an application for hearing seeking death benefits against the employer and the respondent insurer. Another ALJ granted summary judgment against the claimant, finding that the respondent insurer was not “on the risk” on the date of Ms. Nichols’s death. Nonetheless, the claimant entered into a full and final settlement of his claim for death benefits against the employer and the respondent insurer. The claimant proceeded to file another application for hearing and sought death benefits against Travelers Indemnity Company, which insured the employer on the date of Ms. Nichols’s death. Travelers moved for summary judgment, asserting that it did not provide benefits on the date of Ms. Nichols’s injury and paid no benefits to the claimant. Another ALJ dismissed all claims for death benefits against Travelers.
The ALJ considered § 8-44-105, C.R.S., which provides that where there is a contract for workers’ compensation, the policy must provide that the insurance carrier “is directly and primarily liable to the employee” to pay compensation to the employee and,
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in the event of her death, to her dependents, “thereby discharging to the extent of such payment the obligations of the employer.” The ALJ noted that the employer was insured when Ms. Nichols was injured and, also, when she died. He reasoned that the insurers were directly and primarily liable for any death benefits. The ALJ therefore denied and dismissed the claim for benefits against the employer.
The claimant argues that language contained in his settlement agreement does not preclude him from seeking death benefits against the employer. The claimant also refers to assertions in his answer to the motion for summary judgment, but the ALJ noted in his decision that the claimant did not respond to the motion for summary judgment within the time allotted. Furthermore, there is no such response in the file. The claimant, as the party seeking review, is responsible for presenting a record sufficient to demonstrate error, and assertions contained in his brief may not substitute for that which must appear of record Fleet v. Zwick, 994 P.2d 480, 483 (Colo. App. 1999); Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987). We therefore disregard the factual assertions made by the claimant that are not supported by the record.
The Office of Administrative Court’s Rule of Procedure allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts Rule 17, 1 Code Colo. Reg. 104-3. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers’ compensation proceedings Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo. App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act).
Summary judgment is a drastic remedy that is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo. App. 1999). In such cases, we review the ALJ’s legal conclusions de novo. A.C. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). Pursuant to § 8-43-301(8), C.R.S., however, we have authority to set aside an ALJ’s order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law. We find no basis for disturbing the ALJ’s decision.
In this case, the ALJ found that the claimant entered into a full and final settlement with the respondents in 2010. Settlement agreements must use a form approved by the Division of Workers’ Compensation. W.C. Rule of Procedure 7-2(A), 7 Code Colo. Reg. 1101-3. The Division’s forms advise claimants that they are entering final settlements
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and closing all issues related to their cases. Form #WC103 (Settlement Agreement — Pro Se) (Rev. 01/09), Form #WC104 (Settlement Agreement — Represented Claimant) (Rev. 01/09), Colo. Div. of Workers’ Compensation. In addition, the employer was insured during the relevant time periods See § 8-44-105, C.R.S. (pursuant to contract, insurer directly and primarily liable for death benefits and discharges employer’s obligations to extent of payment to employee). Under the circumstances, summary judgment for the employer was warranted.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 30, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________ John D. Baird
_________________________ Kris Sanko
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AVON PRODUCTS, INC., Attn: JEANMARIE DIGIACOMO, MIDLAND AND PECK AVENUES, RYE, NY, (Employer)
LUMBERMENS MUTUAL CASUALTY, Attn: MELISSA CONOVER, C/O: BROADSPIRE — TRAVELERS INDEMNITY COMPANY, DENVER, CO, (Insurer)
FREDERICK W. NEWALL, Attn: FREDERICK W. NEWALL, ESQ., COLORADO SPRINGS, CO, (For Claimant)
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: FRANK M. CAVANAUGH, ESQ., DENVER, CO, (For Respondents)
AVON PRODUCTS, INC., Attn: TIMOTHY M. GILMAN, ESQ., NEW YORK, NY, (Other Party)
RAY LEGO ASSOCIATES, Attn: JON ROBBINS, DENVER, CO, (Other Party 2)