Opinion
W.C. No. 4-436-174
February 24, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which dismissed his Application for Hearing with prejudice. We affirm.
The claimant suffered admitted industrial injuries in July 1999. On May 23, 2003, the respondents filed an amended Final Admission which terminated temporary disability benefits and admitted liability for permanent partial disability benefits. The amended Final Admission also denied liability for future medical benefits, disfigurement benefits, and permanent total disability benefits. It is undisputed the claimant timely objected to the amended Final Admission.
On July 16, 2003, the claimant filed an Application for Hearing on the issues of average weekly wage, future medical benefits, disfigurement, permanent partial disability and permanent total disability benefits. The respondents moved to strike the Application as untimely under § 8-42-203(2)(II), C.R.S. 2003, which provides that a final admission automatically closes all admitted issues unless the claimant files a written objection and requests a hearing "on any disputed issues that are ripe for hearing" within 30 days of the date of the final admission.
In response, the claimant asserted that on May 9, 2003, he sent the respondent a discovery request to which the respondent never complied. The claimant also alleged that receipt of the documents requested from the respondent was necessary to determine whether there were any disputed issues ripe for hearing.
Based on the pleadings, the ALJ issued an order dated August 12, 2003, which granted the respondent's motion and dismissed the Application for Hearing with prejudice. The claimant timely appealed.
The claimant has not filed a brief in support of the petition to review, but contended in the petition that the ALJ exceeded his authority and abused his discretion by dismissing the Application for Hearing with prejudice prior to an evidentiary hearing to resolve the factual issues raised in the claimant's response to the motion to strike. Therefore, the claimant argued the ALJ's order was a denial of due process. We are not persuaded there was any error.
In Chavez v. Cargill, Inc., W.C. No. 4-421-748 (November 1, 2002), we applied the rules of statutory construction to conclude that for purposes of § 8-42-203(2)(II), an issue is "ripe for hearing" if the issue is addressed in a final admission and the legal prerequisites to adjudication of the issue (such as MMI and permanent impairment determinations) are complete. Consequently, we held that the issue of "ripeness" concerns whether or not an issue is subject to adjudication under the statute, not whether a party is prepared to litigate the issue. See also BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997); Woods v. The Home Depot, W.C. No. 4-365-829 (September 27, 2001). Therefore, we rejected the argument that an issue remains open until a party discovers evidence which would support a factual basis for challenging the final admission. We adhere to our conclusions in Chavez.
Nevertheless, there could be circumstances involving a factual dispute as to whether an issue is "ripe for hearing." Where the administrative adjudication turns on issues of fact, due process requires that the parties be afforded a reasonable opportunity in which to confront adverse witnesses and present evidence and argument in support of their position. Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). However, summary judgment is appropriate if there is no disputed issue of material fact and the movant is entitled to judgment as a matter of law. C.R.C.P. 56(e); Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969); Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995).
The party who alleges an abuse of discretion has the burden to provide a record sufficient to show the error. If the appealing party fails to provide an adequate record, the correctness of the ALJ's rulings must be presumed. See People v. Lawrence, 55 P.3d 155 (Colo.App. 2001).
Here, the claimant's Designation of Record includes the "entire file maintained by the Division of Workers' Compensation." However, the record transmitted to us on appeal apparently does not include the entire Division of Workers' Compensation file and our review is limited to the evidentiary record before the ALJ. In addition there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but have restricted our review to the Division of Administrative Hearings record.
The pleadings filed by the claimant after the ALJ's August 12, 2003 order contain factual assertions concerning why receipt of the documents requested from the respondent in May 2003 were a prerequisite to the claimant's determination of whether there were disputed issues ripe for hearing. However, factual assertions may not be raised for the first time on appeal and we conclude the record before the ALJ failed to assert a disputed issue of material fact. Cf. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994); Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987).
The claimant's "Response to the Motion to Strike Claimant's Application for Hearing" asserted that the claimant did not file an application for hearing within 30 days of the May 23 Final Admission because claimant's counsel was waiting for the respondent to comply with May 9, 2003 "discovery requests." The response also references an attachment marked "Exhibit A." However, the record does not contain any attachment to that pleading. Further, the record before the ALJ is devoid of any pleading which identifies the documents the claimant requested from the respondent and explains why the absence of the documents created a legal impediment to further litigation as opposed to an evidentiary barrier to successful litigation of the claimant's request for additional benefits. Under these circumstances the record is legally insufficient to support the conclusion the claimant was entitled to an evidentiary hearing prior to a ruling on the respondent's motion to strike.
Moreover, it is undisputed the claimant failed to apply for a hearing within 30 days of the date of the amended Final Admission. Consequently, we cannot say the ALJ abused his discretion by issuing summary judgment granting the respondent's motion to strike the July 16 application for hearing.
IT IS THEREFORE ORDERED that the ALJ's order dated August 12, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on
February 24, 2004 by A. Hurtado.
Willie B. Franklin, 2430 Bandelier Dr., Colorado Springs, CO 80910
Hank Hahne, Colorado Springs School District #11, 1115 N. El Paso, Colorado Springs, CO 80903
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Gregory B. Cairns, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondent)