Opinion
W.C. No. 4-429-722.
March 10, 2005.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which awarded the claimant permanent total disability (PTD) benefits. We remand for completion of the record.
After three evidentiary hearings the ALJ awarded PTD benefits. In support the ALJ cited the testimony of the claimant's vocational expert finding it more credible than that of the respondents' expert. The ALJ explicitly found the opinions of the respondents' expert were inadequately researched and not supported by sufficient "labor market facts." (Findings of Fact 7-8). The respondents filed a petition to review and designated a transcript of all three hearings.
On review, the respondents challenge the sufficiency of the evidence to support the ALJ's decision to credit the testimony of the claimant's vocational expert over that of the respondents' expert. The respondents also challenge the sufficiency of the evidence to support the finding that the opinions of the respondents' expert were inadequately researched.
The testimony of the respondents' vocational expert spanned two hearings. Our review of the record reflects that the transcript of the hearing on September 9, 2004, abruptly ends at page 119 after the respondents' expert was questioned by the ALJ concerning the source of the labor market data. The next hearing commenced on October 4, 2004, and the claimant's attorney resumed cross-examination of the respondents' expert. At that time claimant's counsel stated that his notes reflected that he had "just asked a question regarding [the vocational expert's] notes on the bus-aide position." Questioning then resumed on this factual issue. (Tr. October 4, 2004, P. 5). However, the transcript of the September 9 hearing does not conclude in the manner described by claimant's counsel, and we are led to believe that a portion of the cross-examination of the respondents' vocational expert was not transcribed.
Under these circumstances the matter must be remanded for completion of the record by inclusion of the presumably missing testimony. If the missing testimony can't be transcribed then the parties and ALJ may reconstruct the record. Compare C.A.R. 10(c); Alfaro v. Industrial Claim Appeals Office, 78 P.3d 1147 (Colo.App. 2003). Once the record is complete, the matter shall again be transmitted for our review.
IT IS THEREFORE ORDERED that the matter is remanded for completion of the record in accordance with this order. Once the record is complete, the matter shall again be transmitted for our review.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Annie Castrellon, LaJunta, CO, Arkansas Valley Regional Medical Center, LaJunta, CO, Mary Ann Donelson, Support Services, Inc., Greenwood Village, CO, James M. Anderson, Esq., Colorado Springs, CO, (For Claimant).
Clyde E. Hook, Esq., Denver, CO, (For Respondents).