Opinion
W.C. No. 4-664-544.
January 23. 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated October 11, 2006, that struck the claimant's application for hearing on the grounds that the ALJ had no jurisdiction to hear the issues endorsed. We affirm.
A hearing was held pursuant to the claimant's application for hearing endorsing as issues compensability, medical benefits, temporary partial disability benefits, and reopening. Although no transcript of the hearing has been provided, we infer from the ALJ's order and the pleadings that at the commencement of the hearing the ALJ heard the respondents' pending motion to strike the application for hearing on the grounds that the ALJ lacked jurisdiction to adjudicate the issues endorsed. Following argument by the parties, the ALJ granted the motion and struck the application for hearing. In granting the motion the ALJ found that the respondents filed a final admission of liability on June 21, 2006, that the language contained in the final admission concerning closure of the issues admitted was in compliance with applicable law, that the claimant failed to object to the final admission, and that the claim therefore automatically closed pursuant to § 8-43-203(2)(b)(II), C.R.S. 2006. Accordingly, the ALJ concluded that he was without jurisdiction to hear any of the issues endorsed, and he struck the application for hearing.
The claimant appealed the order; however, he has not filed a brief in support of his petition to review, nor has he provided a transcript of the hearing. Accordingly, the scope of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). Although the claimant has made several factual assertions in the petition to review, our review is restricted to the record developed before the ALJ, and we are not authorized to consider factual assertions raised by a party for the first time on review. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Voisinetv. Industrial Claim Appeals Office, 725 P.2d 171 (Colo.App. 1988).
Initially we note that, although on its face the ALJ's order does not appear to grant or deny a benefit or penalty, we consider the order final for purposes of our review. We have no authority to review an order that does not satisfy the finality criteria of section 8-43-301(2), C.R.S. 2006, which provides that any dissatisfied party may seek review of an order "which requires any party to pay a penalty or benefits or denies the claimant any benefit or penalty." Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). However, we have previously held that an order which determined that a claim was closed by a final admission of liability was final and subject to immediate review under § 8-43-301(2). This was true because the final admission effectively denied benefits by requiring the claimant to file a petition to reopen and prove the requisite elements before additional benefits could be awarded. SeeMaloney v. Ampex Corp., W.C. No. 3-952-034 (February 27,2001); Stinson v. Duck Co., W.C. No. 4-271-437 (January 26, 1998) (where ALJ struck an application for hearing on grounds the claim was closed by a final admission, the order was not interlocutory where the claimant alleged the claim had not been properly closed and, therefore, it was unnecessary for him to file a petition to reopen to obtain additional benefits). Accordingly, we conclude that we have jurisdiction to review this order.
Our review is statutorily restricted to a determination whether the findings of fact are sufficient to permit appellate review, whether conflicts in the evidence are resolved, whether the findings of fact are supported by the evidence, whether the findings of fact support the order, and whether the order is supported by applicable law. Further, in the absence of a transcript we are required to presume that the ALJ's findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Here, we perceive no reversible error. Section 8-43-203(2)(b)(II), C.R.S. 2006, provides as follows:
An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers' compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice to the claimant that the case will be automatically closed as to the issues admitted in the final admission if the claimant does not, within thirty days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues that are ripe for hearing. (Emphasis added).
As noted, we are bound by the ALJ's factual finding that the claimant did not object to the final admission or apply for a hearing in response to it. Accordingly, the failure to file a written objection to the final admission within 30 days of its date closed the claim on all admitted issues. Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821 (Colo.App. 2001); Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). We have previously observed that the courts have treated provisions for objecting to and contesting a final admission, including determinations of MMI and PPD, as jurisdictional. Roddam v. Rocky Mountain Recycling, W.C. No. 4-367-003 (January 24, 2005) (citing Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993).) In Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261 (Colo.App. 2004) the court stated that "we conclude that a claimant has thirty days after the date an employer files an FAL to file an application for hearing. . . ." Peregoy, 87 P.3d at 264. If the claimant does not do so, the issues admitted in the final admission are closed. Id. See also Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo.App. 2005) (case automatically closes unless claimant files an objection to the final admission within thirty days and requests a hearing on any disputed issues that are ripe). Therefore, we perceive no basis on which to disturb the ALJ's order striking the hearing on jurisdictional grounds.
Finally, we note that the claimant raised an issue in his petition to review regarding whether he timely received the final admission of liability. Although it is doubtful that the ALJ was without jurisdiction to adjudicate that issue, it does not appear to have been endorsed prior to the hearing. Because no transcript has been provided we are unable to ascertain whether the issue of proper service of the final admission was raised at the hearing and, if so, what the resolution of that issue was. Because at this point it is merely a factual assertion in the petition to review it cannot provide the basis for any relief on appeal.
IT IS THEREFORE ORDERED that the ALJ's order dated October 11, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________
John D. Baird ___________________________________
Curt Kriksciun
Reyes Valenzuela, 4792 Federal Blvd., Denver, CO 80211
Best Car Buys/Oasis Outsourcing, Mary McDaniel, 2601 Cattlemen Road #300, Sarasota, FL 34232
Zurich American Insurance c/o Cambridge Integrated Services, Justin Frear, P.O. Box 52106, Phoenix, AZ 85072
Ritsema Lyon, P.C., Kathryn Todd, Esq., 999 18th Street, Suite 3100, Denver, CO 80202 (For Respondents)