Opinion
W.C. No. 4-133-863
May 2, 2000
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ Gandy), which determined the claimant's average weekly wage and awarded permanent total disability benefits. The respondents further challenge a subsequent order of Administrative Law Judge Snider (ALJ Snider), which denied the respondents' "Motion to Assign ALJ for Review Under C.R.S. Section 8-43-301(4) and (5)." Because we conclude ALJ Snider abused his discretion in denying the respondents' motion and transmitting the case without reviewing the record, we remand for further proceedings.
On July 29, 1999, ALJ Gandy entered an order awarding the claimant permanent total disability benefits. The principal issues in the case concern whether or not the claimant suffered injury-related depression, whether or not the claimant's move to a small town in New Mexico vitiated her claim for permanent total disability benefits, and the correct calculation of the claimant's average weekly wage. ALJ Gandy conducted a lengthy hearing at which lay and expert testimony was received. The record also contains vocational and medical reports.
The respondents petitioned to review ALJ Gandy's order. However, prior to completion of the briefing schedule, ALJ Gandy retired. On January 27, 2000, the respondents filed their motion requesting that the Division of Administrative Hearings assign an ALJ, or bring ALJ Gandy back from retirement, for the purpose of reviewing the record and deciding whether to issue a supplemental order, hold additional hearings, or refer the matter to the Industrial Claim Appeals Panel (ICAP) as provided in §§ 8-43-301(4) and (5), C.R.S. 1999.
On March 1, 2000, ALJ Snider denied the respondents's motion. ALJ Snider stated that he reviewed the respondents' "brief in support of their petition to review" and the claimant's brief in opposition. Based on that review, ALJ Snider determined that the case should be forwarded to ICAP. Accordingly, ALJ Snider transmitted the matter to us by order (green sheet) dated March 1, 2000.
Following transmission of the matter, the parties contacted this office and requested permission to file briefs concerning the propriety of ALJ Snider's March 1 order denying the respondents' motion. We granted the request and have received briefs from both parties. In addition, we consider the March 1 order to be final and reviewable as incident to ALJ Gandy's order awarding permanent total disability benefits. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
On review, the respondents contend that ALJ Snider' March 1 order circumvents the statutory review procedures mandated by §§ 8-43-301(4) and (5). The respondents argue that because these statutes afford the ALJ discretionary authority to order an additional hearing, issue a supplemental order, and alter legal conclusions, it is an abuse of discretion to exercise such authority without reviewing the evidence and testimony. Under the unique facts of this case, we agree.
Section 8-43-301(3), C.R.S. 1999, provides that in cases where a party petitions to review, the ALJ "cannot rule on the petition until the transcripts are lodged with the division." Section 8-43-301(4), provides that once the briefing schedule is complete, the ALJ "shall have thirty days to enter a supplemental order or transmit the file to the industrial claim appeals office for review." Section 8-43-301(5) provides that in ruling on a petition to review the ALJ "may amend or alter the original order or set the matter for further hearing."
When interpreting these provisions, we should strive to effect the legislative intent. Consequently, the words and phrases in the statutes should be given their plain and ordinary meanings. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). To the extent there is any ambiguity, we should consider the problem addressed by the statute, and construe the entire statutory scheme in a manner which gives consistent, harmonious, and sensible effect to all of its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Further, we must assume the statute is intended to effect just and reasonable results. Weld County School District RE-12 v. Bymer, supra.
We also note that administrative agencies must comply strictly with their enabling statutes, and have no authority to set aside or circumvent legislative mandates. Dodge v. Department of Social Services, 657 P.2d 969 (Colo.App. 1982). In this regard, we recognize that the administrative and judicial review provisions of the Workers' Compensation Act (Act) are complete, definitive and organic. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992).
The statutory scheme established for post-hearing consideration of a petition to review forbids the ALJ from taking any action until the briefs and transcripts are complete. In our view, at least one purpose of this requirement is to assist the ALJ in exercising his discretion in deciding whether to issue a supplemental order, hold an additional hearing, or transmit the matter to ICAP. It follows that the statutory scheme assumes the ALJ reviewing the petition to review has a fundamental appreciation of both the factual and legal issues at stake in the case.
We do not dispute that the decision of whether to issue a supplemental order, hold an additional hearing, or transmit the matter to ICAP is discretionary with the ALJ who considers the petition to review. See Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996). However, an abuse of discretion may occur when the administrative action is beyond the bounds of reason, as where it is unsupported by applicable law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985). In our view, an ALJ who exercises the discretion contemplated by §§ 8-43-301(4) and (5) cannot make an informed and reasonable decision concerning whether or not to alter findings of fact or hold an additional hearing (which may determine the underlying legal controversies) without having conducted the original hearing or, alternatively, reviewing a transcript of the hearing and all evidence submitted. Cf. Wooden v. Conway's Red Top, Inc., W.C. No. 3-842-707 (July 21, 1995) (an "administrative officer" lacked jurisdiction to transmit matter to ICAP because this procedure deprived the parties of the right to have the Director of the Division of Workers' Compensation make an independent determination concerning whether or not to issue a supplemental order or hold additional hearings with respect to an order previously issued by the Director). Indeed, if an ALJ purported to alter findings of fact when considering a petition to review, but had not conducted the hearing or reviewed the record, due process considerations would arise. State Compensation Insurance Fund v, Fulkerson, 680 P.2d 1325 (Colo.App. 1984).
Here, it is apparent from ALJ Snider's March 1, 2000, order that he did not review the transcript and the evidence prior to transmitting the matter to ICAP for review. Instead, he restricted his review to the briefs submitted by the parties, and the briefs are not the evidence in the case. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Thus, we hold that ALJ Snider abused his discretion by circumventing the statutory review process established by the legislature.
In reaching this result, we have considered the claimant's argument that ALJ Snider could not review the findings and conclusions entered by ALJ Gandy because a determination of the persuasiveness and credibility of the evidence depends on a "face-to- face evaluation by the presiding ALJ." However, there is no due process requirement that the ALJ who conducts the hearing enter the ultimate findings of fact and conclusions of law. All that is required is for the ALJ who determines the facts to review a transcript of the proceedings and the relevant evidence. Ski Depot Rentals, Inc. v. Lynch, 714 P.2d 516 (Colo.App. 1985). Moreover, much of the evidence in workers' compensation cases consists of medical and vocational reports, and the depositions of expert witnesses. Thus, the ALJ who presides at the hearing frequently lacks the benefit of "face-to-face evaluation" of the critical witnesses. Indeed, ALJ Gandy appears to have placed great reliance on the deposition testimony of Dr. Kurtz, a witness who did not appear at the hearing.
Finally, we have considered the claimant's reliance on Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984), and we find that case to be distinguishable. In Coven, the presiding ALJ entered an order denying the claims for benefits, but retired shortly thereafter. The claimants than filed motions to "reopen for further hearings" and to "set aside all prior evidentiary proceedings." A second hearing officer denied these motions. The Court of Appeals, applying the predecessor to §§ 8-43-301 (4) and (5), concluded that because the presiding hearing officer had entered sufficient findings of fact, there was no abuse of discretion in denying the motions for additional proceedings.
Unlike Coven, the issue in this case is not whether a second ALJ is required to grant an additional hearing when the presiding ALJ retires after entering an order. Rather, the issue here is to what extent must the second ALJ review the record prior to ruling on a petition to review which alleges that the order issued by the presiding ALJ is not supported by the existing record. As we have held, it is an abuse of discretion for the second ALJ to rule on the petition to review without considering a transcript and the evidence. We do not read Coven as having considered or addressed this issue.
Finally, we recognize that the ALJ must act on a petition to review within thirty days of completion of the briefing schedule, or the matter will be transmitted to ICAP by operation of law. Section 8-43-301(4); Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989). Thus, a case may be transmitted to ICAP without an ALJ taking any affirmative action with respect to the petition to review. However, in the vast majority of cases, the presiding ALJ will not have retired, and it may be presumed the presiding ALJ elected to transmit without further action. Since the ALJ presided over the hearing, the ALJ has an adequate factual basis for declining to exercise discretion to issue a supplemental order or hold an additional hearing.
Under the circumstances, the matter must the remanded for further proceedings in accordance with §§ 8-43-301(4) and (5). The Division of Administrative Hearings may elect to have ALJ Gandy return from retirement (if feasible) or appoint another ALJ to review the transcript and evidence for the purpose of entering a supplemental order, holding an additional hearing, or transmitting the matter to us for review. In light of this disposition, we need not reach the substantive issues, nor the respondents' argument concerning due process.
IT IS THEREFORE ORDERED that ALJ Snider's order dated March 1, 2000, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
____________________________________ Kathy E. Dean
Examiner Socolofsky dissents.
Contrary to the conclusion reached by the majority, I perceive no abuse of discretion in ALJ Snider's failure to examine the evidentiary record. Section 8-43-301(5), C.R.S. 1999, requires "if it has not already been done, the administrative law judge or director, following a petition to review an order, shall make findings of fact and conclusions of law necessary to support such order." Otherwise, under the statute, any other action is entirely within the discretion of the hearing officer. See State Compensation Insurance Fund v. Fulkerson, 680 P.2d 1325 (Colo.App. 1984). Unlike the circumstances in Fulkerson, ALJ Snider did not make factual findings. Specific factual findings had already been made by ALJ Gandy. I therefore conclude that the provisions for review contained in § 8-43-301(4) (5) have been satisfied. See Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984). I would not remand, and would reach the merits of the case.
Copies of this decision were mailed May 2, 2000 to the following parties:
Sarah J. Cordova, P. O. Box 811, Mora, NM 87732
Donna Treber, General Cable Co./Mobile Tool International, 5600 W. 88th Ave., Westminster, CO 80030
National Union Fire Insurance Co., Stacy Strickland, Crawford Company, P. O. Box 6502, Englewood, CO 80155-6402
Gayle Brand, AIG — VS, P.O. Box 335, Parsippany, N.J. 07054-0335
Liz Snead, Crawford Company, 10600 Arrowhead Dr., Fairfax, VA 22030
Michael P. Dominick, Esq., 250 Arapahoe Ave., #301, Boulder, CO 80302 (For Claimant)
Lawrence D. Blackman, Esq., and Lynda S. Newbold, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80203 (For Respondents)
BY: A. Pendroy