Opinion
W.C. Nos. 4-440-977, 4-323-662
March 10, 2003
FINAL ORDER
The non-insured respondent seeks review of a Corrected Order of Administrative Law Judge Wheelock (ALJ Wheelock) which awarded permanent total disability benefits, future medical benefits and refused to reduce the respondent's bond. We affirm.
In an order dated September 22, 1997, ALJ Wheelock found the claimant suffered compensable injuries to her arm, shoulder, low back and right leg which rendered her temporarily totally disabled and required medical treatment. ALJ Wheelock also found the claimant developed chronic pain and depression following surgery for the industrial injuries. The claimant was subsequently treated by Dr. Leppard and Dr. Moffatt.
On August 18, 1998, Dr. Leppard placed the claimant at maximum medical improvement (MMI), released the claimant to modified employment and recommended future medical treatment consisting of regular physician visits and medications. Dr. Leppard's final diagnosis was chronic low back pain, dysthymia, chronic anxiety disorder and depression. Dr. Leppard assigned a 31 percent whole person impairment rating for permanent physical and mental impairment but opined that the psychiatric impairment is the combined result of the industrial injury and a preexisting condition.
Following the death of Dr. Moffatt, the respondent designated Dr. Gamblin to treat the injury. In a report dated October 2, 2000, Dr. Gamblin opined the claimant demonstrated significant depressive symptoms as a result of pain and physical limitations. Similarly, on November 4, 2000, Dr. Mann noted the claimant was distressed, frustrated and depressed. Dr. Mann diagnosed an adjustment disorder with depression and anxiety along with a pain disorder. In a subsequent report dated April 17, 2001, Dr. Gamblin opined that the claimant is disabled from any gainful employment as a result of the depressive symptoms.
The claimant subsequently applied for a hearing on permanent total disability benefits. The issue was heard by ALJ Wheelock on May 1, 2001, and November 15, 2001. On conflicting medical and vocational evidence ALJ Wheelock found the claimant established prima facie evidence of permanent and total disability. ALJ Wheelock also found the vocational rehabilitation offered by the respondent was unlikely to return the claimant to employment. In any case, ALJ Wheelock credited the testimony of vocational expert, Michael Fitzgibbons (Fitzgibbons), that the claimant was not capable of vocational rehabilitation. Therefore, ALJ Wheelock determined the respondent failed to sustain its burden to prove the claimant was barred from receiving permanent total disability benefits under § 8-43-111(3), C.R.S. 2002.
In a Corrected Order dated December 19, 2001, ALJ Wheelock required the respondent to pay permanent total disability benefits and awarded future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). Further, ALJ Wheelock denied the respondent's request for a reduction of a previously filed bond. The respondent timely appealed.
After the matter was briefed, the record was certified to us for review. A dispute arose concerning the contents of the record on review. Consequently, we remanded the matter for completion of the record.
On remand ALJ Friend directed the parties to file position statements to support their assertion that each document they sought to be included in the record on appeal was part of the record before ALJ Wheelock. ALJ Friend determined that only records that were before ALJ Wheelock as of December 17, 2001, were properly included in the record on review. Furthermore, ALJ Friend determined the complete file maintained by the Division of Workers' Compensation was not provided to ALJ Wheelock for her consideration, nor was the file from a previous hearing before ALJ Stuber [now Court of Appeals Case Number 01CA2247], except as specifically submitted to ALJ Wheelock at the hearings on May 1, 2001 and November 15, 2001.
Neither party filed an appeal from ALJ Friend's order and the matter was retransmitted to us for review of ALJ Wheelock's Corrected Order. However, on January 2, 2003, the respondent moved for a second order remanding the matter for completion of the record to include "numerous documents which bear the received stamp of the Division of Administrative Hearings and were received after the application of hearing was filed." The respondent contends these documents include, but are not limited to, ALJ Wheelock's Corrected Order dated December 19, 2001, and pleadings relevant to the respondent's request to depose Dr. Gamblin.
We granted the respondent's second motion for remand to include a copy of the claimant's opposition to the respondent's May 2001 motion to depose Dr. Gamblin. Further, it is undisputed ALJ Wheelock entered a Corrected Order dated December 19, 2001, which is the subject of our review. Although the Division of Administrative Hearings did not specifically comply with our first order of remand which directed that ALJ Wheelock's Corrected Order be included in the record on review, the respondent previously submitted a signed copy of the Corrected Order and we accepted that copy as the order on review. However, because ALJ Friend gave the parties an adequate opportunity to submit additional documents and explain why they were considered by ALJ Wheelock, we denied the respondent's second motion for remand to complete the record by the inclusion of any other document.
I.
On appeal of the ALJ Wheelock's Corrected Order dated December 19, 2001, the respondent first contends ALJ Wheelock erroneously failed to grant its 1998 motion for recusal. The claimant contends the respondent waived this argument by failing to raise it at the hearings on May 1, 2001, and November 15, 2001. We agree with the claimant.
Waiver is the intentional relinquishment of a known right. Waiver may be explicit, or it may be implied where a party engages, "in conduct which manifests an intent to relinquish the right or privilege or acts inconsistently with its assertion." Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). Furthermore, parties are presumed to know the applicable law and required to act accordingly. Paul v. Industrial Commission, 632 P.2d 638 (Colo.App. 1981).
The respondent moved to recuse ALJ Wheelock on grounds she had been endorsed as a "material" witness in a criminal matter by El Paso County against John Fourton. ALJ Wheelock denied the motion in May 1998. There can be no legitimate dispute that the May 1998 order was interlocutory and not immediately subject to review. See Provo v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA1239, September 12, 2002). Indeed, the May 1998 order was only reviewable when incident to a final order that granted or denied a benefit or penalty. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
The Rules of Procedure, VIII(I)(4), 7 Code Colo. Reg. 1101-3 at 30 (2002) [formerly page 27 (1995)], provides that, "[C]opies of interlocutory orders previously issued in the case that a party intends to raise on appeal shall be filed and identified at the formal hearing."
At neither the May 1 nor the November 15 hearing did the respondent file ALJ Wheelock's 1998 order denying the motion to recuse. In fact, the respondent did not mention the prior order or make any assertion it sought to raise the issue on appeal. Therefore, we agree with the claimant that the respondent failed to preserve the argument for our review.
II.
Next, the respondent contends ALJ Wheelock was collaterally estopped from making any factual determination concerning the nature and cause of the claimant's medical and mental condition that was inconsistent with ALJ Stuber's order dated September 20, 2000. In particular, the respondent contends ALJ Stuber found the claimant has no chronic pain disorder, the claimant suffered no compensable psychological injury, and the claimant has no need for psychiatric treatment or medications to cure or relieve the effects of the industrial injury. Further, the respondent contends ALJ Stuber rejected the opinions of Dr. Leppard. Therefore, they contend ALJ Wheelock erred in crediting Dr. Leppard's opinions to find the claimant is permanently and totally disabled. We disagree.
The doctrine of collateral estoppel is directed to "issue preclusion," and may be applicable when a party seeks to relitigate an issue of fact or law determined in a prior proceeding. Sunny Acres Villa Inc., v. Cooper, 25 P.3d 44 (Colo. 2001) ; M M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998). The doctrine bars relitigation of an issue previously determined if the issue "(1) sought to be precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Sunny Acres Villa Inc., v. Cooper, supra.
In Sunny Acres the Supreme Court held that a causation finding reached after a hearing on temporary partial disability benefits did not invoke the doctrine of collateral estoppel on the cause of the claimant's permanent total disability. The court reasoned that the "difference in potential duration of benefits [between temporary total and permanent total] alone demonstrates the difference in exposure to an employer" so as to prohibit application of collateral estoppel. Id. at 48.
Applying the principles established in Sunny Acres here, we are compelled to conclude the claimant did not have a "full and fair" opportunity to litigate the issue of causation before ALJ Stuber. The issues before ALJ Stuber were the respondent's liability for specific medical benefits, the respondent's motion to terminate future benefits and the respondent's request for reimbursement of past medical benefits on grounds the claimant fraudulently misrepresented her injury. In contrast, the issues before ALJ Wheelock were permanent total disability and future medical benefits.
ALJ Stuber did not purport to determine whether the claimant is permanently and totally disabled from the industrial injury. In fact, ALJ Stuber did not determine whether the industrial injury caused any permanent disability. Further, ALJ Stuber explicitly found that the issue of Grover-type medical benefits was not litigated or adjudicated. (Specific Findings of Fact Paragraph 1, page 2). Therefore, there were no identical issues between the order of ALJ Stuber and the order on review.
Moreover, we agree with ALJ Wheelock that the respondent's related arguments are predicated on a misinterpretation of ALJ Stuber's order. ALJ Stuber found the claimant obtained particular medications based on false representations of her physical symptoms, inappropriately shared her medication with others, used the medications for euphoric effects rather than to relieve pain, and abused emergency room services. Therefore, ALJ Stuber relieved the respondent of liability for medical expenses associated with this conduct. Furthermore, ALJ Stuber found that the industrial injury did not cause a compensable aggravation of the claimant's preexisting anxiety order. Consequently, ALJ Stuber relieved the respondent of liability for the cost of the claimant's anxiety medication-Klonopin. However, ALJ Stuber did not determine the claimant had no compensable mental impairment. Indeed, ALJ Stuber determined Dr. Leppard is a "credible witness and an honest, objective physician." (Finding of Fact 105). Consequently, ALJ Stuber ordered the respondent to provide additional medical benefits for treatment of the claimant's psychological problems. Further, the ALJ determined the claimant "possibly has some level of chronic low back pain." (Finding of Fact 87).
III.
The respondent next contends ALJ Wheelock erroneously admitted Dr. Gamblin's April 17, 2001, medical report at the May hearing and erroneously denied its motion to depose Dr. Gamblin. Correspondingly, the respondent contends the ALJ erroneously relied on the opinions of vocational expert Fitzgibbons because his opinions were based on Dr. Gamblin's letter which it was precluded from challenging through rebuttal testimony. We reject these arguments.
Rule VIII(I), 7 Code Colo. Reg. 1101-3, provides that documents must be provided to opposing counsel at least 20 days prior to the formal hearing, absent a showing of good cause. The ALJ has considerable discretion in determining whether a party has demonstrated good cause for failing to provide a medical report to opposing counsel within the time limit established by Rule of Procedure VIII(I)(1). See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Factors which the ALJ may consider in determining whether good cause exists for the untimely submission of a medical report include the significance of the evidence, whether or not the evidence might have been obtained and submitted by the exercise of reasonable diligence prior to the hearing, and the prejudice to the opposing party by allowing the evidence. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983). Because the ALJ's authority is discretionary, we may not interfere with the ALJ's ruling in the absence of an abuse of discretion, such as where the order is unsupported by the law or the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
At the hearing on May 1, 2001, the respondent objected to the admission of Dr. Gamblin's April 17, 2001 letter on grounds it was produced only 7 days before the hearing. ALJ Wheelock sustained the respondent's objection (May 1, 2001, Tr. p, 620). However, after the respondent's attorney asked Fitzgibbons whether he relied on Dr Gamblin's opinions in concluding the claimant is incapable of earning wages, ALJ Wheelock admitted the letter. The May 1 hearing was then continued to November 15, 2001, and ALJ Wheelock granted the respondent's attorney leave to "do whatever she feels is necessary, in response" to Dr. Gamblin's April 17 letter. (May 1, 2001, Tr. p. 110). On May 11 the respondent moved for permission to depo Dr. Gamblin. The claimant objected. ALJ Wheelock denied the motion on May 23, 2001.
As we read the transcript, the ALJ implicitly determined that once the respondent's attorney elicited testimony from Fitzgibbons concerning the specifics of Dr. Gamblin's letter, it was necessary to review the April 17 letter to assess the credibility of Fitzgibbons testimony and, therefore, the claimant established good cause for admitting the late filed letter. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (reviewing court may consider findings which are necessarily implied by the ALJ's order); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). Based on this record we cannot say the ALJ's ruling exceeds the bounds of reason.
Section 8-43-210, C.R.S. 2002, provides that "depositions may be substituted for testimony upon good cause shown." The ALJ has wide discretion in determining whether good cause has been shown for taking a deposition. Consequently, an order denying a deposition is governed by the abuse of discretion standard. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986).
Contrary to the respondent's contention, ALJ Wheelock's findings are sufficient to ascertain the basis of her decision to deny the motion to depose Dr. Gamblin. The order states it was based on review of the respondent's motion and the "Claimant's opposition to the Motion." The claimant's "Objection to Motion to Take the Deposition of Kenneth Gamblin MD" points out the respondent did not allege it could not secure Dr. Gamblin's appearance at the November hearing for the purpose of cross-examination. Further, claimant's counsel acknowledged that the record demonstrates an antagonistic relationship between respondent's counsel and claimant's counsel. Under these circumstances, ALJ Wheelock implicitly determined that insofar as the respondent sought to cross-examine Dr. Gamblin, it was more appropriate for the respondent to subpoena Dr. Gamblin to the November hearing to provide live testimony rather then take his deposition. Accordingly, we cannot say ALJ Wheelock's refusal to allow the deposition of Dr. Gamblin was an abuse of discretion.
IV.
The respondent also contests the award of permanent total disability benefits. The respondent argues the claimant failed to overcome the Division-sponsored independent medical examination (DIME) physician's opinion that the claimant's chronic pain is unrelated to the industrial injury. Similarly, the respondent contends that because the DIME physician found no psychiatric impairment the record is legally insufficient to support ALJ Wheelock's finding that the claimant suffered compensable mental impairment. In any case, the respondent contends the claimant's mental impairment from depression is not a "permanent" condition. Therefore, the respondent contends the ALJ erroneous awarded permanent total disability benefits based on the claimant's mental impairment. We are not persuaded.
Under § 8-42-107(c), C.R.S. 2002, the DIME physician's physician is entitled to special weight on the issues of MMI and permanent partial disability. However, the courts have repeatedly held that the heightened burden of proof required by § 8-42-107(8)(c) is confined to the issues of MMI and permanent medical impairment benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002) ; Public Service Co. of Colorado v. Industrial Claim Appeals Office, 40 P.3d 68 (Colo.App. 2001).
Section 8-40-201(16.5)(a), C.R.S. 2002, defines permanent total disability as the claimant's inability "to earn any wages in the same or other employment." The overall objective of this standard is to determine whether employment is "reasonably available to the claimant under his or her particular circumstances." Weld County School District RE-12 v. Bymer, 955 P.2d at 558. Because permanent total disability is based upon a claimant's impaired access to the labor market, and not medical impairment, permanent total disability need not be proven by medical evidence. See Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997). It follows that a claimant may prove permanent and total disability without overcoming the DIME physician's medical impairment rating.
Furthermore, neither § 8-40-201(16.5), nor § 8-42-111 C.R.S. 2002, requires permanent total disability to be proven by "clear and convincing evidence." Rather, the claimant is required to prove permanent total disability by a preponderance of the evidence. See Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991); Gonzales-Rivera v. Beacon Hill Investments, Inc., W.C. No. 4-124-250 (September 27, 1994); Ybarra v. Ray Shelton Construction Co., W.C. No. 4-116-741, (November 24, 1993). Consequently, we reject the respondent's argument that the DIME physician's opinions on the nature and severity of the claimant's medical and mental impairment were binding unless overcome by clear and convincing evidence to the contrary.
The question of whether the claimant sustained her burden to prove permanent total disability is one of fact for the ALJ. We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8) C.R.S. 2002; Christie v. Coors Transportation Co., 933 P.2d 1330 (Colo. 1997). Where the expert testimony is conflicting, it is the ALJ's sole prerogative to resolve the conflict. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The ALJ's factual determinations concerning the claimant's permanent medical and mental impairment are supported by substantial evidence in the reports of Dr. Gamblin, Dr. Moffatt, Dr. Leppard and Dr. Mann. Furthermore, substantial evidence is not determined by number of witnesses presented by each party. Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065 (1961). Accordingly, it is immaterial the record contains some evidence which, if credited, might support a contrary determination. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983).
The respondents remaining arguments essentially request that we reweigh the evidence. We have no authority to substitute our judgment for that of ALJ Wheelock concerning the sufficiency and probative weight of the evidence and, therefore, decline the respondent's invitation to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
V.
The respondent contends ALJ Wheelock misapplied the "full-responsibility rule" insofar as she found the respondent is liable for the claimant's permanent mental impairment even if there was no industrial aggravation of the claimant's preexisting mental impairment. We perceive no error.
The "full responsibility rule" provides that an employer takes an injured worker as it finds her, and if personal factors such a pre-existing mental or physical condition combine with a work-related injury or disease to render the worker permanently and totally disabled, the employer must compensate the worker for the entire permanent total disability. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (1991); Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1962). Thus, the employer does not escape liability even if the claimant's permanent total disability is the combined effect of an industrial injury and a pre-existing physical or mental problem. See Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). The only exception to the rule is where the industrial injury is not a significant causative factor in the claimant's disability. Lindner Chevrolet v. Industrial Claim Appeals Office, 914 P.2d 496 (Colo.App. 1995) ; Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986). As stated in Seifried, the term "significant" means that there is a direct causal relationship between the industrial injury and the permanent total disability.
ALJ Wheelock's order reflects a proper application of the full responsibility rule. She found that although the claimant had a preexisting anxiety disorder, the industrial injury aggravated the claimant's mental disorder resulting in a diagnosis of major depression. (Discussion and Conclusions of Law 2). Further, the ALJ determined that even if all of the claimant's mental impairment were preexisting, the respondents took the claimant as it found her when she was hired and cannot escape liability where an industrial injury superimposed on a preexisting condition resulted in permanent and total disability. Because the ALJ expressly credited the opinions of Dr. Leppard and, Dr. Leppard opined that over at least two-thirds of the claimant's permanent medical impairment was attributable to the effects of the industrial injuries, the ALJ also necessarily determined that the industrial injuries played a significant causative factor in the claimant's permanent total disability as required by Seifried v. Industrial Commission, supra.
VI.
Nevertheless, the respondent contends the record compels the conclusion the claimant refused an offer of vocational rehabilitation. Again we disagree.
Section § 8-42-111(3), provides that:
"[a] disabled employee capable of rehabilitation which would enable the employee to earn any wages in the same or other employment who refuses an offer of employment by the same or other employer or an offer of vocational rehabilitation paid for by the employer shall not be awarded permanent total disability."
Relying on the testimony of vocational experts Fitzgibbons, Doug Prutting and Joel Palmer, ALJ Wheelock found the respondent's requirement that there be no oral communication between the claimant's counsel and the vocational rehabilitation counselor was unreasonable and rendered the offers of vocational rehabilitation "unworkable." Therefore, ALJ Wheelock reasonably inferred there was no valid offer of vocational rehabilitation. This determination is amply supported by the evidence and is fatal to the application of § 8-42-111(3). Consequently, it is immaterial whether ALJ Wheelock erred in finding the claimant was not capable of vocational rehabilitation.
VII.
The respondent contends ALJ Wheelock erred in denying their request to reduce the value of the previous posted surety bond. The respondent contends it paid $26,265.12 in benefits, and only $59,734.88 of accrued benefits remain. Therefore, the respondent argues that ALJ Wheelock should have reduced the $86,000 bond.
Section 8-43-408(2) C.R.S. 2002, provides that where the respondent is uninsured for workers' compensation at the time of the injury, the ALJ shall require the employer to pay to a trustee an amount equal to the present value of all unpaid compensation or benefits computed at the rate of four percent per annum, or in lieu thereof, the employer shall file a bond to guarantee the payment of the benefits awarded.
ALJ Wheelock found, inter alia, that the respondent's witness, Marie Senkbeil (Senkbeil), did not know whether all of the previously awarded medical benefits had been paid. (Finding of Fact 31). The finding is consistent with Senkbeil's testimony. Under these circumstances, we cannot say ALJ Wheelock erred in finding the respondent did not sustain its burden to show grounds to reduce the bond.
VIII.
We also reject the respondent's contention that the record is insufficient to support the award of Grover-type medical benefits. The claimant is entitled to Grover type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to cure and relieve the effects of an industrial injury or prevent further deterioration of the claimant's condition. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995) ; Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). As we have previously stated, neither the Workers' Compensation Act, nor the case law, makes an arbitrary distinction between "active treatment" and "diagnostic procedures." Therefore, we have previously held that medical monitoring is a compensable Grover-type benefit. Brock v. Jack Brach Sons Trucking, W.C. No. 3-107-451, (December 15, 1995); Atwood v. Western Slope Industries, W.C. No. 3-069-135, (November 28, 1994). We adhere to our previous conclusions.
The respondent's arguments notwithstanding, Dr. Leppard's recommendation for regular physician visits and prescription medication is sufficient to support ALJ Wheelock's finding that the claimant sustained her burden to prove that future treatment will reasonably be necessary to relieve the effects of the industrial injury. Consequently, we may not disturb the award.
IX.
Finally, we reject the respondent's contention the ALJ erred by signing the findings of fact prepared by the claimant's attorney without any changes or corrections. The courts have repeatedly declined to reverse orders merely because they were originally drafted by one of the parties. In Ficor, Inc. v. McHugh, 639 P.2d 385 (Colo. 1982), and Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966), the courts held that if the findings are otherwise sufficient, they are not weakened or discredited because they were originally drafted by one of the parties. In Colorado-Ute Electric Assn. v. Scarlett, (Colo.App. No. 88CA1055, September 14, 1989) (not selected for publication) the Court stated, when "a fact finder signs findings that are submitted by a party, the responsibility for their accuracy becomes his."
Admittedly, where the order was drafted by one of the parties, we must scrutinize the ALJ's findings more critically. Ficor, Inc. v McHugh, supra. However, it is presumed that ALJ Wheelock examined the proposed findings and agreed that they correctly stated the facts as she found them to be; otherwise, she would not have adopted them as her own. See Uptime Corp. v. Colorado Research Corp., supra. The respondent has not offered a basis to disregard that presumption here.
We also note that at the conclusion of the hearing on November 15, 2001, the parties agreed to submit proposed orders. Thus, the respondent waived any objection to ALJ Wheelock's consideration of the claimant's "proposed" order.
IT IS THEREFORE ORDERED that the ALJ's Corrected Order dated December 19, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2002. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 10, 2003 to the following parties:
C. J. Harris, c/o Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940
John Diane Lyons Fourton d/b/a Silver Deer, Inc., 11 Elm Ave., Colorado Springs, CO 80906-3173
Kathleen Pennucci, Special Funds, Tower 2, #630, Division of Workers' Compensation — Interagency Mail Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Donna Dell'Olio, Esq. and Ian D. Kalmanowitz, Esq., 431 N. Cascade Ave., #1, Colorado Springs, CO 80903 (For Respondents)
BY: A. Hurtado