Opinion
W.C. No. 4-692-330.
October 25, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated June 12, 2007 that denied his claim for temporary total disability (TTD) benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant sustained a compensable injury on June 28, 2006. The claimant finished working the day of his injury and went home. That night the claimant received a voice mail message from his employer informing him that he was fired. The claimant was unable to work due to disability caused by his injuries and, at the time of the hearing, had not worked since June 28, 2006. The claimant was placed on medical restrictions beginning August 25, 2006 and continuing through the date of the hearing, which was held on May 21, 2007. The ALJ determined that the claimant made a prima facie case for entitlement to TTD benefits. However, the ALJ also found that the respondents established by a preponderance of the evidence that the claimant was responsible for his termination from employment through a volitional act. Therefore, the ALJ found that the claimant was not entitled to TTD benefits from the date of the accident through the date of the hearing.
The claimant chose not to provide a transcript of the hearing and, therefore, we must presume that the ALJ's factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). In addition the claimant concedes that his separation from employment was volitional.
On appeal, the claimant first contends, citing Anderson v. Longmont Toyota Inc., 102 P.3d 323 (Colo. 2004) and Grisbaum v. Industrial Claim Appeals Office, 109 P.3d 1054 (Colo.App. 2005), that the ALJ failed to take into consideration the claimant's worsened medical condition. The claimant argues that the claimant's condition has "not improved, and has probably worsened." In support of this allegation, the claimant has submitted medical reports attached to his brief even though they were not offered into evidence and appear to have been authored after the date of the hearing. However, 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 claimant's representations and attachments to his brief may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Therefore, we may not consider the medical records submitted by the claimant after the hearing.
In Anderson v. Longmont Toyota Inc., the Supreme Court held that the termination statutes are not a permanent bar to temporary disability benefits when the worsening of a prior work-related injury causes the claimant's wage loss. In reaching this conclusion, the court relied upon the statutory authority to reopen cases for a worsened condition under § 8-43-303, C.R.S. 2007, noting that if the General Assembly had intended to modify the reopening provisions it would have expressly done so. In Grisbaum v. Industrial Claim Appeals Office, the court reiterated the holding of Anderson that a termination from employment for cause is not a permanent bar to the receipt of temporary total disability benefits. The court applied that principle where the claimant voluntarily resigned from his regular job and then became restricted from working altogether. The court held that, notwithstanding his voluntary termination, the claimant was entitled to temporary total disability benefits where his increased restrictions caused his inability to work.
We reject the claimant's argument that Anderson v. Longmont Toyota Inc. and Grisbaum v. Industrial Claim Appeals Office compel an award of temporary total disability under the circumstances of this case. Here the prehearing conference order dated February 28, 2007 identified the issues for hearing and the issue of petition to reopen was specifically stricken. Neither the case information sheet filed by the claimant nor the one filed by the respondents listed petition to reopen as an issue to be heard. Therefore, it does not appear that worsening of the claimant's condition was argued at the hearing. The order contains no reference to the issue of worsening.
Moreover, because the claimant failed to procure a transcript reflecting what issues were tried, we must presume the ALJ's recitation in his decision of the issues presented to him was correct. See Fleet v. Zwick, 994 P.2d 480, 483 (Colo.App. 1999) (party alleging error has burden to present record sufficient to disclose the error): see also Thornwall v. Colorado Cartridge/Out of Toner, W. C. No. 4-564-779 (June 24, 2004); Barron v. State of Colorado, W. C. No. 4-493-692 (January 29, 2004). 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 Hanna v. Print Expediters 77 P.3d 863 (Colo.App. 2003); Fleet v. Zwick, 994 P.2d 480 (Colo.App. 1999).
Under these circumstances, we presume the regularity of the ALJ's order and further presume the argument, that the claimant's condition worsened after termination, was not raised by the claimant before the ALJ. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Therefore, we shall not consider the argument regarding worsening of condition raised for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
We have considered the claimant's remaining argument concerning policy considerations. The claimant engages in speculation about the employer's motivation for terminating the claimant in the present case and the "dangerous precedent" that enforcement of denial of temporary benefits would have. We note first that the claimant has already conceded, as he must without the existence of a transcript, that it was the claimant, not the employer, who was responsible for his termination from employment through a volitional act. Nova v. Industrial Claim Appeals Office, supra. Therefore, at this point the employer's motivation does not appear to be relevant. Further, we are bound by the law as currently written and the claimant's remedy, if any, lies with the General Assembly. Campion v. Barta Builders, 780 P.2d 23 (Colo.App. 1989).
IT IS THEREFORE ORDERED that the ALJ's order dated June 12, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
JEFF MARTIN, BAYFIELD, CO, (Claimant) MICHAEL STITH CONSTRUCTION, Attn: MICHAEL STITH, DURANGO, CO, (Employer)
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer)
MICHAEL WANGER, ESQ., Attn: MICHAEL WANGER, ESQ., DURANGO, CO, (For Claimant)
RITSEMA LYON, P.C., Attn: SEAN M. KNIGHT, ESQ., DENVER, CO, (For Respondents)