W.C. No. 4-497-628Industrial Claim Appeals Office.
November 1, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant failed to prove his injuries arose out of and in the course of employment and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant suffered multiple injuries when he was hit by a truck. Based upon the evidence presented at a hearing on November 29, 2001, the ALJ found the claimant was injured during a game of “chicken” where he deliberately jumped out in front of a truck being driven by a co-worker. The co-worker testified he expected the claimant to jump out of the way before there was any impact. However, the claimant did not and was struck by the front of the truck.
The ALJ found the claimant’s horseplay involved a deviation which was sufficient to remove the claimant from the course and scope of his employment under the test set forth in Lori’s Family Dining, Inc., v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). Therefore, the ALJ determined the claim was not compensable.
The claimant’s Petition to Review contains several allegations of error. However, the sole argument raised in the claimant’s Brief in Support of the Petition is that the ALJ abused her discretion in failing to grant the claimant’s request for a continuance. Thus, we infer the claimant has abandoned the other contentions because he has provided no argument or authority in support. We perceive no reversible error in the ALJ’s denial of the continuance.
Initially, we note that the briefing schedule required the claimant’s brief in support of the Petition to Review to be filed by July 16, 2002, and the claimant’s brief was not filed until July 23, 2002. Although the claimant filed a motion for an extension of time to file a brief, the record does not contain any order granting an extension. Consequently, we are unable to ascertain whether the claimant’s brief was timely filed. However, assuming, arguendo, that the claimant’s brief was timely filed, the claimant’s argument does not establish grounds for appellate relief.
Section 8-43-207(1)(j), C.R.S. 2002, allow an ALJ to continue a hearing to a later date upon a showing of “good cause” by the party seeking the continuance. The ALJ is vested with wide discretion in determining whether “good cause” has been established. In determining whether to grant a continuance, the ALJ should consider “the circumstances of the particular case, weighing the rights of the party requesting the continuance to a fair hearing against the prejudice that may result from delay.” Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993).
We may not disturb the ALJ’s order denying the motion for continuance in the absence of a clear showing of an abuse of discretion. Cherry Creek School District #5 v. Voelker, supra; 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).
The record reveals that on June 27, 2001, the claimant propounded a set of interrogatories to the respondents. On July 30 the claimant made a second request for the respondents to answer the interrogatories, but the respondents’ attorney denied receiving the interrogatories. Consequently, on August 1, 2001, the interrogatories were again mailed to the respondents. The respondents responded the interrogatories on August 13, but refused to disclose some of the information requested.
The claimant then requested a supplemental response which was provided on September 20, 2001. However, the claimant was not satisfied with the respondents’ disclosure and, therefore, the claimant filed a Motion to Compel the respondents’ compliance with the discovery request. The respondents objected.
On October 16, 2001, ALJ Henk ordered the parties to set a pre-hearing conference on the Motion to Compel. The claimant contends he did not receive ALJ Henk’s order until Saturday, October 20 and, therefore, could not take any action to set the matter for a pre-hearing until Monday, October 22. However, the claimant’s attorney did not contact the respondents’ attorney to schedule the prehearing conference until November 14, 2001 and no pre-hearing conference was set.
The ALJ determined that if the claimant had promptly complied with ALJ Henk’s order, a prehearing could have been scheduled in time for the respondents to complete the interrogatories and for the discovery to be admissible at the November 29 hearing. (Tr. p. 12). Under these circumstances, the ALJ implicitly found the claimant failed to establish good cause for granting a continuance.
Contrary to the claimant’s contention, the ALJ recognized the delay caused by the respondents’ failure to completely answer the interrogatories. In fact, the ALJ found the claimant properly proceeded with the Motion to Compel. (Tr. p. 10). However, the ALJ determined that it was the claimant’s burden to set the matter for a prehearing conference to pursue his Motion to Compel. Under these circumstances, the ALJ determined that the claimant’s delay in setting the matter for a prehearing conference was the cause of the problem and that responsibility for the previous delays was not really dispositive. (Tr. pp. 10, 12).
The ALJ’s findings are supported by the record. Furthermore, the ALJ’s findings support the conclusion that once he filed the Motion to Compel, the claimant was responsible for failing to set the matter for a prehearing conference in sufficient time to avoid the need for a continuance. Accordingly, we cannot say the ALJ’s refusal to grant the claimant’s request for a continuance exceeds the bounds of reason.
We note that under the Rules of Procedure, Part VIII(C)(2)(b)(6), 7 Code Colo. Reg. 1101-3 at 23 (2002), a continuance may be granted upon a “showing that more time is clearly necessary to complete authorized discovery.” It is implicit in the ALJ’s ruling that if more time had been “clearly necessary” to complete discovery the claimant would not have delayed compliance with the ALJ Henk’s order to set the matter for a prehearing conference. Consequently, Rule VIII(C)(2)(b)(6) did not require the ALJ to grant the claimant’s request for a continuance.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 31, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
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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 ___________November 1, 2002 __________to the following parties:
James Orcutt, 1709 E. 17th St., Pueblo, CO 81001
CFI Steel, L.P. d/b/a Rocky Mountain Steel Mills, 225 Canal St., Pueblo, CO 81004-3409
Carolyn Bjur, Oregon Steel Mills, 1000 S. West Broadway, #2200, Portland, OR 97205
Chris Matchett, Sedgwick Claims Management Services, Inc., 1225 17th St., #2100, Denver, CO 80202-5534
Lawrence D. Saunders, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Katherine Markheim Lee, Esq. and Jon Atkins, Esq., 1700 Broadway, #1900, Denver, CO 80290 (For Respondent)
BY: A. Hurtado