W.C. No. 4-281-779Industrial Claim Appeals Office.
February 28, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied and dismissed her claim for workers’ compensation benefits. We affirm.
At a hearing before the ALJ, the claimant testified that she injured her back on Friday, December 8, 1995, while lifting a wastebasket during her work as an instructor for the employer. The respondents presented the testimony Ms. Montoya and Ms. Garcia. Ms. Montoya stated that in a meeting with the claimant on Monday, December 11, the claimant admitted that she injured her back while moving furniture for her daughter on Saturday, but wanted Ms. Montoya to say that she witnessed the injury at work on Friday, December 8. (Tr. pp. 44, 50). Ms. Garcia testified that the claimant made a similar admission during a meeting with the claimant and Ms. Montoya on Monday, December 11. (Tr. pp. 52-53, 55-56). Pursuant to an offer of proof, the respondents also presented evidence that the claimant made a similar admission to Ms. Adrian Petty. (Tr. pp. 71-73).
Claimant’s counsel sought to challenge the credibility of Ms. Montoya and Ms. Garcia by cross-examination of Ms. Garcia. Counsel proposed to question Ms. Garcia about Ms. Montoya’s testimony because Ms. Montoya failed to mention Ms. Garcia’s presence during her Monday meeting with the claimant. The ALJ sustained the respondents’ objection to the proposed cross-examination on grounds that it was inconsistent with his order for the sequestration of witnesses which was entered at the commencement of the hearing. (Tr. pp. 16, 55, 57).
Ultimately, the ALJ determined that the claimant’s testimony of an alleged back injury on Friday, December 8, 1995 was not credible. Instead, the ALJ was persuaded by the testimony of the respondents’ witnesses. Furthermore, the ALJ determined that, even if the claimant injured her back on Friday, December 8, the claimant suffered a subsequent back injury on Saturday, December 9, which was an efficient, intervening event. Therefore, the ALJ determined that the claimant failed to sustain her burden to prove that she suffered a compensable injury.
On review the claimant contends that she was denied due process by the ALJ’s failure to allow the cross-examination of Ms. Garcia concerning Ms. Montoya’s testimony. We are not persuaded.
Needless to say, due process of law requires that the parties be afforded an opportunity to confront adverse witnesses and present evidence and argument in support of their position Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076
(Colo.App. 1990). However, the ALJ has wide discretion to control the course of evidentiary proceedings, and may set reasonable limitations on cross-examination. Section 8-43-207(1)(h), C.R.S. (1996 Cum. Supp.); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803
(Colo.App. 1988). We may not interfere with the ALJ’s evidentiary ruling in the absence of an abuse of discretion. Denver Symphony Association v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974).
The standard on review of an alleged abuse of discretion is whether, under the totality of the 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). Moreover, the party alleging an abuse of discretion must show sufficient prejudice before it is reversible error. C.R.E. 103(a); People v. P.R.G., 729 P.2d 380 (Colo.App. 1986); Williamson v. School District No. 2, 695 P.2d 1173
(Colo.App. 1984).
Assuming, arguendo, that the claimant’s proposed line of questioning to Ms. Garcia concerning the prior testimony of Ms. Montoya is a permissible form of cross-examination, we fail to perceive how the claimant was prejudiced by the ALJ’s ruling.
Claimant’s counsel stated to the ALJ that the cross-examination was designed to point out the “inconsistency” between the testimony of Ms. Montoya and Ms. Garcia concerning the circumstances surrounding the Monday meeting with the claimant. On appeal, the claimant also argues that the purpose of the cross-examination was to have the ALJ “observe Ms. Garcia’s reaction when she was confronted with this inconsistent testimony.” However, the ALJ stated that he was “well aware of the conflict” between the testimony of Ms. Montoya and Ms. Garcia. (Tr. pp. 57-58).
Under these circumstances, the testimony the claimant sought to elicit on cross-examination was cumulative. Cf,
C.R.E. 403; Cherry Creek School District v. Voelker, 859 P.2d 805 (Colo. 1993) (ALJ may preclude the presentation of cumulative evidence). Therefore, we cannot say that the ALJ’s error, if any, in preventing the requested cross-examination was reversible error.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 28, 1996, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed February 28, 1997
to the following parties:
Janice Coons, 321 E. 112th Circle, Northglenn, CO 80233
Wheatridge Beauty College, Inc., 5801 W. 44th Ave., Denver, CO 80212
TIG Fairmont Ins. Co., Attn: Nancy Rostad, P.O. Box 17005, Denver, CO 80217
Mary E. Jeffers, Esq., 1120 Lincoln St., Ste. 1000, Denver, Co 80203 (For the Claimant)
Lydia W. Daugherty, Esq., 6400 S. Fiddler’s Green Cir. #1279, Englewood, CO 80111 (For the Respondents)
BY: _______________________