Opinion
W.C. No. 4-720-369.
March 13, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated October 9, 2007, that denied and dismissed the claimant's claim for benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant worked for the employer lifting material and stocking grocery items. The claimant developed pain and symptoms in his neck while at work. The claimant was referred to Dr. Paz and the claimant told Dr. Paz that he had received prior neck treatment. Dr. Paz testified that the claimant's symptoms and need for medical care were not related to his employment. The ALJ concluded that the totality of the medical reports admitted into evidence did not contain a credible or persuasive opinion that the claimant suffered an aggravation of his preexisting condition as a result of his work for the employer. The ALJ therefore denied and dismissed the claimant's claim.
I.
On appeal, the claimant first contends that the ALJ's refusal of claimant's request for a continuance was an abuse of discretion. We disagree.
At the inception of the September 13, 2007 hearing, the claimant moved for a continuance of the hearing stating that he had just recently received a report from Dr. Colapinto dated August 24, 2007, which indicated that the claimant's condition was work-related. Tr. at 3. The claimant desired an opportunity to question Dr. Colapinto regarding the basis of that opinion. The claimant's attorney noted that the respondents had also recently sent him untimely medical records. Tr. at 4. The respondents objected to the continuance but offered to refrain from objecting to the admission of claimant's late reports into evidence in exchange for the claimant's agreement to allow the respondents' late reports to be accepted into evidence. Tr. at 4-5. The claimant declined to accept the respondents' offer. Tr. at 7-8. Then both parties objected to the untimely submissions of the other and the ALJ excluded all of the untimely reports.
A motion for continuance is addressed to the ALJ's discretion, and unless a manifest abuse of discretion is shown, the ALJ's ruling will not be disturbed on review. Continental Sales Corp. v. Stookesberry 170 Colo. 16, 459 P.2d 566 (Colo. 1969). We may not disturb the ALJ's order denying the motion for a continuance in the absence of a clear showing of an abuse of discretion. Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993); Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ's ruling exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). In applying this standard, it is proper to consider whether the ALJ's order is supported by the record and applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Orcutt v. CFI Steel, W.C. No. 4-497-628 (November 01, 2002).
In determining whether to grant a continuance or permit the taking of post-hearing evidence, an ALJ may consider various factors including whether a party has exercised due diligence to obtain the evidence prior to the hearing, whether the evidence might be outcome determinative, and the potential inconvenience and expense to the opposing party if additional proceedings are permitted. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987). The ALJ's decision must also consider the parties' due process rights, including the right to present evidence and confront adverse evidence. See Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
Here, the claimant alleged an occupational injury to his neck in February 2007 and filed an application for hearing on May 17, 2007. The hearing was scheduled approximately four months later for September 13, 2007. The claimant filed a case information sheet dated September 4, 2007 indicating that either the parties had not elected to conduct discovery or discovery had been completed.
The claimant's counsel did explain that he had just received the medical report in question but did not explain why the report could not have been secured earlier. The respondents objected to a continuance at least in part because they had brought an expert witness to testify at the scheduled hearing. Tr. at 2. As noted above the respondents also offered to allow the claimant's medical report to be received into evidence in exchange for the claimant's agreement to allow the respondents' late medical reports to be received into evidence. Based upon this record we cannot say the ALJ's implicit finding that the claimant failed to establish good cause for the continuance exceeds the bounds of reason. Therefore, the ALJ did not abuse his discretion in denying the continuance.
II.
The claimant next contends that he was denied due process because of the ALJ's interpretation of the "twenty day rule" requiring the exchange of medical records twenty days prior to a hearing. The claimant argues that he was prevented from having an opportunity to investigate the basis of Dr. Colapinto's opinion that the injury was work related. Under the circumstances here we are unpersuaded that the ALJ abused his discretion.
The respondents objected to the claimant's attempt to introduce into evidence Dr. Colapinto's report on the basis that it had not been exchanged twenty days prior to the hearing. Tr. 8-9. The claimant conceded that the report had not been timely exchanged but argued that the report had just been received and it was impossible for it to have been timely provided to the respondents. The ALJ ruled that the amended act provides that documents are not admitted unless exchanged more than 20 days ahead of time, and that there was no exception to that rule. Therefore, the ALJ excluded both the claimant's untimely documents and the respondents' untimely documents.
The ALJ has wide discretion to control the course of a hearing and make evidentiary rulings. Section 8-43-207(1)(c), C.R.S. 2007; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Because the ALJ's authority is discretionary, we may not interfere with the ALJ's ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). As noted above, the standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason as where it is not supported by the record or the applicable law. Coates, Reid Waldron v. Vigil, supra.
Section 8-43-210 was amended in 2007 and now provides that all relevant medical records, vocational reports, expert witness reports, and employer records "shall" be exchanged with all other parties at least twenty days prior to the hearing date. Senate Bill 07-258 (approved May 30, 2007, Colo. Sess. Laws 2007, ch. 341 at 1473-74.) This amendment was included with several revisions to the Workers' Compensation Act, §§ 8-40-101 to 8-47-209, C.R.S. 2007, which also added a new provision to the portion of the Act addressing the scheduling of hearings. Subsection (3) was added to § 8-43-209, and includes the following language: Once the hearing is commenced, the administrative law judge may, for good cause shown, continue the hearing to a date certain to take additional testimony, to file an additional medical report, to file the transcript of a deposition, or to file a position statement. . . ." Colo. Sess. Laws 2007, ch. 341 at 1473 (emphasis added).
We do not necessarily agree with the ALJ's interpretation of § 8-43-210, insofar as he concluded that it conclusively bars admission of any medical report not exchanged within 20 days under every circumstance and as an invariable matter of law. Hence, despite the ALJ's observation that the statute contains "no exceptions," there may be circumstances in which it is appropriate for the ALJ to exercise discretion to admit medical records that had not been timely exchanged. However, in our view a remand is not necessary in the present case. The transcript reflects that the ALJ considered the current provisions of § 8-43-210. The transcript also reflects that the claimant's counsel had an opportunity to admit the medical reports as part of the proffered agreement by the respondents' counsel to submit all the untimely reports. However, he apparently elected to insist upon the exclusion of the respondents' late medical reports even if that decision resulted in the exclusion of the late medical report he sought to admit. The ALJ also considered the claimant's motion to continue the hearing and as noted above we cannot say the ALJ's implicit finding that the claimant failed to establish good cause for the continuance exceeds the bounds of reason. We note that the claimant offered no real explanation regarding the efforts he made to obtain the medical reports in time to exchange them pursuant to the statute, regarding the circumstances that frustrated those efforts, regarding his efforts to arrange for the testimony by deposition or at hearing of the providers who generated the reports, and regarding whether he availed himself of the prehearing procedures designed to resolve evidentiary matters prior to the scheduled hearing. Under these circumstances we are not persuaded the ALJ's decision to exclude from evidence the report of Dr. Colapinto exceeded the bounds of reason.
IT IS THEREFORE ORDERED that the ALJ's order issued October 9, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
KING SOOPERS, Attn: PATRICK CALLAHAN, EVERGREEN, CO, (Employer)
LAW OFFICE OF MARK A. SIMON, Attn: MARK A SIMON, ESQ, DENVER, CO, (For Claimant)
THOMAS, POLLART MILLER, LLC, Attn: ERIC POLLART, ESQ., GREENWOOD VILLAGE, CO, (For Respondents)
SEDGWICK CMS, Attn: GENE GLEASON, LEXINGTON, KY, (Other Party)
SEDGWICK CMS, Attn: SHARMIE JENSEN, SALT LAKE CITY, UT, (Other Party 2)