W.C. No. 4-609-101.Industrial Claim Appeals Office.
September 30, 2005.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which denied the claimant’s motion to continue and granted the respondent’s motion to dismiss claimant’s claim under the Colorado Workers’ Compensation Act. We affirm.
At the commencement of the hearing on May 24, 2005, the respondent’s attorney filed a Motion to Dismiss the matter for lack of jurisdiction. Claimant was granted leave to file a response to the Motion to Dismiss no later than June 9, 2005, but instead filed a Motion to Continue the hearing. The ALJ was not persuaded that there was good cause for continuing the matter.
Consequently, based on the record, the ALJ found that the claimant was an employee of the United States Postal Service at the time of his alleged injury. The ALJ determined that this matter involves a claim for workers’ compensation benefits within the exclusive jurisdiction of the United States Government and that the claimant’s remedies must be pursued through the Federal Employee’s Compensation Act. The ALJ further determined that to the extent the claim is one for monetary damages under a claim of tort, the claimant must seek damages pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2679(b)(1).
The claimant contests the ALJ’s findings, but the claimant has not provided, nor has he made a timely request for a transcript of the hearing on May 24, 2005. See § 8-43-301(2), C.R.S. 2005 (petitioner shall, at the time of the filing of the petition to review, “order any transcript relied upon for the petition to review, arrange with the hearing reporter to pay for the same and notify opposing parties of the transcript ordered.”); Rule VII Workers’ Compensation Rules of Procedure. Under these circumstances, we are required to presume the ALJ’s findings of fact are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
The claimant also argues that the ALJ should have continued the matter. However, an ALJ may only grant a continuance upon a showing of “good cause.” Section 8-43-207(1)(j), C.R.S. 2005. The ALJ is vested with wide discretion in determining whether “good cause” has been established. Accordingly, we may not disturb the ALJ’s order denying the claimant’s 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). Given the limited information presented here, we cannot say that the ALJ abused his discretion in failing to grant a continuance.
Moreover, we are not persuaded by the claimant’s remaining contentions that there is any basis for disturbing the ALJ’s order. We note that on August 30, 2005, the claimant submitted what he has characterized as checks, copies of time clock cards and letters from co-workers in an attempt to buttress his case. We cannot consider these documents as they were not presented to the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925
(Colo.App. 1995); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171
(Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated June 13, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Dona Halsey
____________________ Tom Schrant
Timothy Baysinger, Sedalia, CO, Mario Madrid, Woodland Park, CO, Michael E. Hegarty, Esq., Denver, CO, (For United States Post Office)