W.C. No. 4-419-460Industrial Claim Appeals Office.
November 24, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ) which determined the claimant failed to prove a compensable left heel injury. The claimant contends the ALJ erroneously denied a continuance. We perceive no reversible error and, therefore, affirm.
The claimant alleged that on May 25, 1999, she suffered a left heel injury at HealthOne while undergoing physical therapy for an admitted knee injury. The respondent denied liability for the left heel injury. On January 21, 2000, the claimant filed an application for hearing on the issues of compensability, temporary disability and medical benefits. The list of endorsed witnesses on the application included “P.T. Therapists-names to be supplied.”
At the commencement of the hearing, the claimant requested a continuance for purposes of subpoenaing a critical witness who could testify concerning the May 25 heel injury. Claimant’s counsel stated that HealthOne refused to prepare a written report documenting the injury, and there was some confusion about the name of the physical therapist to be subpoenaed. The claimant’s counsel stated the claimant thought the HealthOne therapists who treated her were “Carlene” and “Monique” but the day before the hearing she discovered that the person she was looking for was “Leslie.” However, the claimant did not know Leslie’s last name and, therefore, requested additional time to obtain that information and subpoena Leslie’s testimony. (Tr. pp. 4, 5).
Respondent’s counsel objected to a continuance on grounds the respondent was ready to proceed and had completed its investigation. Based upon the respondent’s argument the ALJ denied the motion for a continuance.
At the conclusion the hearing, the ALJ found the claimant failed to sustain her burden to prove that her left heel problems arose out of authorized medical treatment for the admitted knee injury. Therefore, the ALJ denied workers’ compensation benefits for the left heel injury. The claimant timely appealed the ALJ’s order.
On appeal, the claimant contends the ALJ erred in denying a continuance because the central issue for adjudication turned on the occurrence of a left heel injury during the quasi-course of employment. We disagree.
Section 8-43-207(1)(j), C.R.S. 2000, and the Rules of Procedure, Part VIII(J),7 Code Colo. Reg. 1101-3, at 27, allow an ALJ to continue a hearing to a later date upon a showing of “good cause” by the party seeking the continuance. 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). Where, as here, a party seeks a delay to present additional evidence, the ALJ may consider whether the party used due diligence to obtain the evidence prior to the hearing. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991).
The ALJ is vested with wide discretion in determining whether “good cause” has been established. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Accordingly, 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, 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 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).
Here, the ALJ was persuaded by the respondent’s argument that the claimant’s right to present evidence, which might corroborate the alleged left heel injury, was outweighed by the potential prejudice to the respondent. The respondent’s counsel argued that a delay could prejudice the defendant’s ability to defend the claim for ongoing temporary partial disability benefits because the employer had light duty employment available if the heel injury was compensable. (Tr. p. 9). The respondent’s attorney also argued the claimant had approximately five months to discover the “critical” witness and implicitly argued that information obtained the day before the hearing was not a reasonable basis for a delay. In support, the respondent’s attorney stated the claimant’s discovery deposition was taken February 11, at which time the claimant identified three witnesses she relied on to corroborate the alleged injury. The respondent’s attorney stated he advised claimant’s counsel by correspondence dated March 10 that the respondent was unable to locate any physical therapist named “Monique” or “Carlene” at HealthOne. On April 24, 2000, the respondent deposed the claimant’s treating physician, Dr. Desai, who testified he did not know any Monique or Carlene at HealthOne. (Desai depo. pp. 14-15).
Because the claimant alleged the injury occurred in May 1999, she had a year to locate the “critical” witness. The unavailability of the witness was not sudden and the claimant’s counsel did not explain why the claimant waited until the day before the hearing to discover the critical witness. 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 her discretion in denying the continuance.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 2, 2000, 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. 2000. 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 24, 2000 to the following parties:
Patricia Barela, 146 S. Stuart, Denver, CO 80219
King Soopers, 1331 Speer Blvd., Denver, CO 80204-2512
Dillon Companies, Inc., Cheryl Zimmerman, W.C. Dept. #827, P. O. Box 5567 T. A., Denver CO 80217
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy