W.C. No. 4-747-702.Industrial Claim Appeals Office.
August 19, 2008.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated March 26, 2008 that found the claim compensable and ordered the insurer to pay for the cost of certain specific medical care. We affirm.
The matter was set for an expedited hearing on March 25, 2008. The respondents did not appear for the hearing. Office of Administrative Courts’ Rule of Procedure (OACRP) 23, 1 Code Colo. Reg. 104-3 at 10 addresses the issue of a non-appearing party. OACRP 23 provides that if a party fails to appear at a hearing after notice of the hearing a judge shall not enter any orders against the non-appearing party as a result of that hearing unless the ALJ finds that the address to which the notice of hearing was sent is the most recent address provided by the non-appearing party to either the OAC or the Division of Workers’ Compensation. Here at the time of the hearing, the claimant presented to the ALJ a notice of contest dated February 18, 2008 filed by insurer. Tr. at 4. The ALJ found that the notice of hearing was mailed by the insurer on March 17, 2008, and the address of the insurer was the same as on the notice of contest sent to the claimant. The ALJ, based on the claimant’s testimony and medical reports submitted by the claimant, found the claim compensable and ordered the insurer to pay for the cost of certain specific medical care.
On appeal, the respondents first object to the order because they assert that the claimant may not have been entitled to an expedited hearing. The respondents rely on OACRP 9(b-d), 1 Code Colo. Reg. 104-3
at 4, which provides that a claimant may file an
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application for expedited hearing if the respondent filed a notice of contest and less than 45 days have passed since the notice of contest was filed. The respondents argue that the February 11, 2008 application for an expedited hearing was filed before the February 18, 2008 notice of contest.
However, the argument that the claimant was not entitled to an expedited hearing was not raised by the respondents before the ALJ Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). The respondents received the claimant’s application for an expedited hearing and filed a response to that application. In their response, the respondents made no objection to the hearing being set on an expedited basis. Instead, the respondents only raised the issues of whether the injury was work-related and the claimant’s timing of the report of injury. Therefore, we shall not consider the respondents’ argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
The respondents further argue that they did not appear at the expedited hearing due to a scheduling error. The respondents request that a new hearing be scheduled.
Insofar as the respondents contend the ALJ was obligated to grant another hearing for the presentation of additional evidence, we disagree. When ruling on a petition to review, the ALJ has authority to permit the presentation of additional evidence. Section 8-43-301(5), C.R.S. 2007. The ALJ also has the authority for good cause shown to grant a continuance for the taking of additional evidence. Section 8-43-207(1)(j), C.R.S. 2007.
However, the ALJ’s authority to permit additional evidence after the conclusion of the hearing is discretionary. Consequently, we may not interfere with the ALJ’s implicit denial of the respondents’ request unless an abuse of discretion is shown. Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430 (Colo.App. 2003); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.3d 803 (Colo.App. 1988) Pemberton v. Jim Snook D/B/A Old Outlaw Construction, W. C. No. 4-604-588 (December 09, 2004). The appellate standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Under the circumstances, we find no abuse of discretion in the ALJ’s declining to schedule a new hearing because the respondents failed to appear due to a scheduling error.
Insofar as the respondents argue that the order should be set aside on substantive grounds, we are not persuaded that the ALJ erred. We may correct, set aside or remand
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an order, but only upon the grounds that the findings of fact are not sufficient to permit appellate review, that conflicts in the evidence are not resolved, that the findings of fact are not supported by the evidence, that the findings of fact do not support the order, or that the award of benefits is not supported by applicable law. Section 8-43-301(8), C.R.S. 2007. Here, we have examined the record and we perceive no basis on which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued March 26, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ Curt Kriksciun
_____ Thomas Schrant
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JIM BUCH, LITTLETON, CO, (Claimant).
ANKMAR, LLC, Attn: DEBBIE CUCCIO, DENVER, CO, (Employer).
HARTFORD FIRE INSURANCE COMPANY, Attn: HEATHER FOLEY, HOUSTON, TX, (Insurer).
THE LAW OFFICES OF SCOTT TESSMER, Attn: SCOTT TESSMER, ESQ., ENGLEWOOD, CO, (For Respondents).
HARTFORD FIRE INSURANCE COMPANY, HOUSTON, TX, (Other Party).
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