Opinion
W.C. No. 4-713-589.
October 9, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated June 23, 2008, that denied and dismissed the claim for compensation and determined the respondents were entitled to recover medical benefits in the amount of $20,034.26 that they paid to third party providers as a result of the claimant's fraudulent misrepresentations. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant failed to demonstrate by a preponderance of the evidence that he suffered a compensable industrial injury to his back on January 10, 2007. The claimant testified he slipped and fell on outdoor steps leading to an apartment unit. The ALJ found that the claimant's testimony was contradicted by a number of witnesses who credibly testified the claimant injured his back the day before the claimed industrial accident by lifting a transmission while working on his own truck. The ALJ further found that Dr. Brodie credibly explained that the claimant's back condition was related to his truck repair activities or constituted the natural consequence of the claimant's pre-existing condition. The ALJ denied and dismissed the claim for compensation.
I.
The claimant contends that the transcript from the March 28, 2008 hearing was so flawed that he cannot receive a fair review of the decision rendered by the ALJ. We are not persuaded.
Here the matter was heard on two separate days: March 28, 2008 and May 12, 2008. When the petition to review was filed by the claimant in July 2008, it appears that a transcript of the March 28, 2008 hearing had already been prepared. The claimant in his petition to review argued that the transcript from the March 28, 2008 hearing was flawed and no clear record was available for review. The record does not contain a transcript of the May 12, 2008 and it does not appear that any was requested.
Section 8-43-213(1), C.R.S. 2008, provides that all testimony taken at hearings "shall either be taken verbatim by a hearing reporter or shall be electronically recorded by the division." The hearing in this case was electronically recorded, and we note the transcript for the March 28, 2008 hearing reveals several inaudible statements. However, the absence of a complete transcript, does not mandate the reversal of an administrative order. Shafron v. Executive Director Department of Revenue, P.3d (Colo.App. No. 07CA0504, June 12, 2008). The court of appeals has stated, "[e]ven if there are some omissions in the transcript, if the relevant portions of the transcript are sufficient to allow review of the dispositive issues on appeal, the record is not insufficient to permit review." Goodwill Industries of Colorado Springs v. Industrial Claim Appeals Office, 862 P.2d 1042, 1046 (Colo.App. 1993); Whatley v. Apple One Employment Services, W.C. Nos. 4-625-784 4-625-60 (August 23, 2005).
Here the claimant contends that a witness crucial to the ALJ's decision perjured himself and the claimant remembers several statements that were in direct conflict with each other. The claimant does not identify the witness or even the subject matter of the alleged conflicting statements. The party asserting insufficiency of the transcript must set forth the nature of the testimony which is allegedly missing from the record. Intermountain Jewish News v. Industrial Commission, 39 Colo. App. 258, 564 P.2d 132 (1977); Haendler v. Forney Industries, W.C. No. 4-615-313 (September 8, 2006). The claimant has failed to do so with the possible exception of certain testimony by Ms. Taylor.
With regard to the testimony of Ms. Taylor, the claimant testified that he was injured on January 10, 2007 as he was walking down a flight of outdoor stairs when he slipped on ice and fell. Tr. at 48. Ms. Taylor testified that on January 9, 2007, after assessing the status of an apartment, she ascended and descended the outdoor steps to the apartment while wearing high-heeled boots. Tr. at 40-41. She noted that, although the weather was cold and overcast, the steps were devoid of ice and snow. Tr. at 40. The ALJ found that Ms. Taylor had stated that snow did not fall on January 10, 2007. In contrast the claimant contends that Ms. Taylor testified that she did not know if snow had fallen on January 10, 2007.
A review of the transcript reveals the following. Ms. Taylor testified that she was very doubtful of the claimed accident because there was no snow or ice on the sidewalk or the stairs and she had no trouble on the stairs. Tr. at 41. Although there were some inaudible sections Ms. Taylor appears to have testified at one point that she did not recall the weather conditions on the January 10, 2007, but when told of the accident on the tenth she commented to a co-worker that there had been no changes in the weather. Tr. at 45. In our opinion, the inaudible portions of Ms. Taylor's testimony "do not obscure the clear import of evidence presented," and the transcript is sufficient for our review. Barone v. State of Colorado Department of Revenue, 736 P.2d 432, 434 (Colo.App. 1987). Further, the transcript supports the ALJ's determination.
Moreover, the ALJ relied, with record support, on evidence other than Ms. Taylor's testimony in concluding that the claim for benefits should be denied. This evidence includes the testimony of co-employees that the claimant had actually injured his back on January 9, 2007 when he tried to lift the transmission of a car. Tr. at 17-19, 32-33. The ALJ also relied on the opinions of Dr. Brodie that the claimant's back condition was related to his truck repair activities or constituted the natural consequence of his pre-existing back condition. The ALJ finding regarding Dr. Brodie's opinion is supported by Dr. Brodie's report contained in the record. Dr. Brodie's report provides ample evidence supporting the ALJ's reliance on Dr. Brodie's opinions. Exhibit A at 14.
However, in addition Dr. Brodie also appears to have testified at the May 12, 2008 hearing. 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 Fleet v. Zwick, 994 P.2d 480 (Colo.App. 1999). In general, when 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). There is no transcript in the record of the May 12, 2008 hearing. Therefore, we must presume the ALJ's findings of fact related to Dr. Brodie's opinions are supported by substantial evidence.
In our opinion, the record is sufficient to allow review of the dispositive issues on appeal. Further, we have reviewed the record and the ALJ's findings of fact. The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). We perceive no basis upon which to set aside the ALJ's order.
II.
The claimant next argues that the ALJ erred in not requiring a witness who had testified at the first hearing, Scott Marlow, to attend the second hearing. The claimant argues that he was denied the opportunity to question fully the witness. The claimant contends that his fundamental rights were infringed and therefore he is entitled to a new hearing.
We first note that Mr. Marlow's direct testimony was presented at the first hearing. Tr. at 29. At the conclusion of the direct testimony counsel for the claimant cross-examined Mr. Marlow. Tr. at 34. At the end of the first day of the hearing, counsel for the claimant expressed the desire to recall Mr. Marlow to the witness stand. The ALJ first inquired if counsel for the claimant could recall Mr. Marlow at the end of the first hearing and conclude that examination in a short period of time. Tr. at 89. Counsel for the claimant stated that it might take too long. The ALJ denied the claimant's request to compel Mr. Marlow to be present and testify at the next hearing, but invited the claimant to file a motion if the claimant thought he would need him to testify at the next hearing. Tr. at 90-91. It appears that the claimant never filed such a motion.
We do not dispute that cross-examination is a fundamental right which cannot be denied. Peterson v. Wal-Mart Stores, Inc., W. C. No. 4-310-909 (January 3, 2002). We further note that the fundamental requirements of due process are notice and an opportunity to be heard. Due process contemplates that the parties will be apprised of the evidence to be considered, and afforded a reasonable opportunity to present evidence and argument in support of their positions. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo.App. 1990).
Here the claimant was given an opportunity to and did cross-examine the witness. Further, the claimant was invited, but failed, to file a motion requesting the opportunity to examine the witness again. A party's failure to avail himself of "an existing process does not equate to a lack of due process." Cramer v. Industrial Claim Appeals Office, 885 P.2d 318, 319 (Colo.App. 1994). Because the claimant failed to avail himself of the offered opportunity to seek another opportunity to examine the witness, we are not persuaded that he was denied due process. See Shepherd v. Costco Wholesale, W. C. No. 4-400-162 (November 3, 2000).
The ALJ is given wide discretion in the conduct of evidentiary proceedings, including the decision of whether to grant a continuance or otherwise permit the taking of post-hearing evidence. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse of discretion is not shown unless the ALJ's determination is beyond the bounds of reason, as where it is contrary to law or unsupported by the evidence. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). We are not persuaded that the ALJ abused his discretion in failing to require Mr. Marlow to attend the second day of hearing.
IT IS THEREFORE ORDERED that the ALJ's order issued June 23, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
THOMAS H MOORE, JR., FORT COLLINS, CO, (Claimant).
OLD TOWN SQUARE PROPERTIES, INC., Attn: ED STONER, FORT COLLINS, CO, (Employer).
PINNACOL ASSURANCE, Attn: GERRY MILLER, DENVER, CO, (Insurer).
JERRY SUMNER, ESQ., C/O: SUMNER LAW OFFICE, PC, FORT COLLINS, CO, (For Claimant).
DOUGLAS L STRATTON, ESQ., C/O: RITSEMA LYON, PC, FORT COLLINS, CO, (For Respondents).
HARVEY FLEWELLING, ESQ, DENVER, CO, (Other Party).