Opinion
W.C. Nos. 3-640-815, 3-729-182, 3-703-172
May 10, 2002
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied her petition to reopen a settlement agreement based on fraud. We affirm.
The claimant sustained compensable injuries to her back and right leg on August 4, 1981, to her neck and left shoulder on December 4, 1981, and to her lower back on April 19, 1983. A claim was filed for each injury and assigned a separate workers' compensation number.
The ALJ found the claimant entered into a settlement of all three claims on September 24, 1985. The settlement provided the claimant waived her rights to all benefits, including vocational rehabilitation, medical benefits, and permanent total disability benefits. The only exception was for continuing medical benefits attributable to the 1983 injury. In May 2001, the claimant petitioned to reopen the settlement alleging fraud by the attorney who represented the respondent at the time of the settlement, her own attorney, a vocational counselor, and one or more of her treating physicians.
In an order dated January 10, 2002, the ALJ denied the petition to reopen. The found the claimant's testimony concerning the alleged fraudulent activities was not credible. He further found no credible evidence the respondent' engaged in any conduct which concealed or falsified medical records, concealed the claimant's vocational status, or engaged in any other fraudulent conduct.
The claimant filed a petition to review the ALJ's order, arguing that she was denied due process of law, and that the ALJ's findings of fact are unsupported by the evidence. However, the claimant failed to order a transcript of the hearing, which apparently would have included not only the claimant's own testimony, but also that of the attorney who represented her time of the settlement and one of the treating physicians accused of falsifying medical records. ( See Order of ALJ Friend dated November 16, 2001, ordering claimant to pay expert witness fee to physician providing testimony on September 6, 2001).
Where, as here, a party fails to procure a transcript, we must presume the record supports the ALJ's findings of fact. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Further, to the extent the ALJ's findings of fact are based on documents submitted at the hearing, we have reviewed the documents and conclude the ALJ's findings are supported by substantial, albeit conflicting, evidence and plausible inferences drawn therefrom. Consequently, we perceive no basis for interfering with the findings of fact. Section 8-43-301(8), C.R.S. 2001; Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Further, the findings support the ALJ's conclusion that the claimant failed to prove the settlement should be set aside for fraud pursuant to section 8-43-204(1), C.R.S. 2001. Generally, the elements of fraud are: (1) a false representation of material fact or a concealment of a material fact which should in good conscience be disclosed; (2) knowledge on the part of the party making the representation that it is false, or indifference to that issue; (3) ignorance of the true facts by the person to whom the representations are made; (4) the party making the representation or concealing a fact does so with the intent to induce action on the part of the other party, and (5) the party to whom the representation or concealment is directed is damaged. Morrison v. Goodspeed, 100 Colo. 470, 60 P.2d 458 (1937); Beeson v. Albertson's Inc., W.C. No. 3-968-056 (April 30, 1996).
Here, the ALJ found no credible evidence the negotiations between the attorney for the respondent and the claimant's attorney evidenced fraudulent representations designed to induce the claimant to enter into the settlement. (Finding of Fact 7). In fact, as the ALJ found, as late as April 22, 1985, the claimant's attorney was recommending against settlement. Further, in a letter dated August 21, 1999, the attorney affirmatively stated that he believed the settlement "was certainly reasonable," that he had "no idea" as to the basis of the claimant's assertion that he "acted unprofessionally" in advising the claimant concerning the settlement.
The claimant apparently challenges Finding of Fact 6, arguing that, contrary to the ALJ's finding, only a cervical myelogram was performed in January 1995. However, the ALJ resolved conflicts in the evidence and credited Dr. Seibert's radiology report of January 7, 1985, which explicitly states that "films of the cervical thoracic lumbar region show exam well down through the upper lumbar conus level and no abnormalities are seen throughout other than a tiny ridging change at C6-7." (Emphasis added). (Claimant's Exhibit 14 at p. 13). Thus, substantial evidence supports the ALJ's determination that the evidence does not support a finding there was any material misrepresentation of fact by the respondent or by the claimant's physicians with respect to the medical record.
Neither do we perceive any basis for the claimant's arguments involving vocational rehabilitation. Although the efforts at vocational rehabilitation may or may not have been reported to the Division of Workers' Compensation as required by applicable rules of procedure, all of the vocational reports clearly state they were sent directly to the claimant as well as her attorney. Thus, the claimant must have been aware that she would probably be unable to return to her pre-injury employment, and that the on-the-job training might be restricted to part-time employment. Thus, we fail to perceive how the record supports the contention that the respondent or the vocational counselor misrepresented facts to the claimant, or concealed facts which were material to her decision to enter into the settlement agreement.
The claimant asserts the ALJ was required to find she suffered from mental disorders and low intelligence which prove the respondent fraudulently induced the settlement. However, the ALJ was unpersuaded that, at the time the claimant entered into the settlement agreement, she was unable to comprehend its meaning or was otherwise misled. This conclusion is certainly supported by evidence that, at the time of the settlement agreement, the claimant had sufficient mental capacity to perform an on-the-job training as a dental assistant. Moreover, we are bound to assume other evidence presented in the case, including that presented by the claimant's former attorney, supports this conclusion.
Finally, the claimant's due process argument is dependent on a review of the transcript. Because the claimant failed to provide a transcript, we have no basis for concluding the ALJ erred in his conduct of the hearing. It is presumed the ALJ acted competently and without bias unless the contrary is shown. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995).
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated January 10, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 10, 2002 to the following parties:
Nancy Allee, 3250 W. Colorado Ave., Denver, CO 80219
King Soopers, Inc., Kim Reiner, RSKCo, P. O. Box 5567 T. A., Denver, CO 80217
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondent)
By: A. Hurtado