IN THE MATTER OF THE CLAIM OF: KENNETH BIRCHFIELD, Claimant,
v.
PUEBLO ELECTRICS INC, Employer,
and
FEDERAL INSURANCE COMPANY, Insurer, Respondents.
W.C. No. 5-118-038-001
Colorado Workers Compensation
Industrial Claim Appeals Office
March 4, 2021
MCDIVITT LAW FIRM PC, Attn: NICOLE GALLERANI ESQ, (For
Claimant)
HALL
& EVANS LLC, Attn: DOUGLAS J KOTAREK ESQ, C/O: KATIE L
MCLAUGHLIN ESQ, (For Respondents)
REMAND
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Lamphere (ALJ) dated November 25, 2020, that denied and
dismissed claimant’s claim for compensation. We remand
the matter to the Office of Administrative Courts to perfect
the record on appeal.
The ALJ
conducted an evidentiary hearing over two sessions on July 21
and September 4, 2020. The primary issue before the ALJ was
whether claimant sustained a compensable injury to his left
shoulder on August 18, 2019.
In his
findings of fact, the ALJ relied heavily on the testimony of
multiple employer witnesses and Dr. Failinger. Based on the
rebutting testimony of these witnesses, the ALJ expressly
deemed the claimant’s testimony to be inconsistent,
unpersuasive and unreliable. Consequently, the ALJ denied and
dismissed claimant’s claim for compensation. On appeal
claimant asks us to review whether the ALJ made legal errors
and disregarded substantial evidence in determining claimant
did not suffer a compensable injury on August 18, 2019.
Claimant
timely filed a Petition to Review the ALJ’s order. In
the petition, claimant requested “a transcript(s) of
the hearing be prepared and included as part of the record
for the Petition to Review… ” In response the
Office of Administrative Courts sent a letter to both parties
on December 15, 2020, indicating that, “The hearing
transcripts for the following hearing dates have been filed:
7-21-2020.” Further the OAC indicated that “a
hearing transcript was already provided to the OAC on August
8th, 2020.” The OAC seemingly overlooked the
fact that a second session of the hearing had taken place on
September 4, 2020, because it set a briefing schedule for...
