W.C. No. 4-492-652Industrial Claim Appeals Office.
March 28, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied and dismissed the claim for workers’ compensation benefits. The claimant argues the ALJ erred in admitting testimony of two unendorsed witnesses. We affirm.
The claimant testified he was hired as a tow truck driver by the uninsured employer, Rocky Mountain Elite Transit, Inc. (Rocky Mountain). According to the claimant, he was receiving training from another driver when the driver wrecked the tow truck.
Rocky Mountain was not represented, nor were any corporate officers present at the commencement of the hearing. However, during the course of the claimant’s testimony, corporate officers Troy Jones and David Ellis appeared on behalf of Rocky Mountain. (Tr. p. 10). Upon completion of the claimant’s testimony, Jones and Ellis expressed a desire to testify. The claimant objected on grounds that Rocky Mountain did not file a response to the application for hearing, nor did it seek to endorse any witnesses. The ALJ overruled the claimant’s objection stating, “they are a party to the action.” The ALJ offered claimant’s counsel an opportunity to interview these witnesses prior to their testimony, but claimant’s counsel declined. (Tr. p. 21).
Jones and Ellis testified that at the time of the accident the claimant had not been formally hired by Rocky Mountain. Rather, the claimant was permitted to ride with the other driver to determine whether the claimant was interested in the work. They also testified the claimant’s ride-along training had been completed at the time of the accident, and they were unaware the claimant was with the other driver when the accident occurred.
The ALJ credited the testimony of Jones and Ellis. Consequently, the ALJ concluded the claimant failed to carry his burden of proof to establish an injury arising out of and in the course of employment, and denied the claim.
On review, the claimant contends the ALJ erred in permitting the testimony of Jones and Ellis. The claimant relies on former Rules of Procedure VIII (A) (5) and (6), 7 Code Colo. Reg. 1101-3 [recently renumbered as Rules VIII (A) (4) and (5)], which prohibit a party from adding a witness after the filing of the response to application for hearing, or producing an unendorsed witnesses at hearing, except by agreement or by approval of the ALJ for good cause shown. We perceive no error.
The rules cited by the claimant grant the ALJ wide discretion in determining whether or not good cause has been shown for permitting the testimony of an unendorsed witness. See Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988); Clark v. Excel Corp.,
W.C. No. 4-347-891 (September 20, 1999). An abuse of discretion is not shown unless the ALJ’s action exceeds the bounds of reason, as where it is unsupported by the evidence or contrary to law. Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001). Factors which may be considered by the ALJ include, but are not limited to, the potential that the proposed testimony will be outcome determinative and the prospective inconvenience and cost to the opposing party if a late endorsement is permitted See IPMC Transportation Co. v. Industrial Claim Appeals Office, supra, Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1997); Clark v. Excel Corp., supra.
The ALJ did not abuse her discretion in permitting Jones and Ellis to testify. Although the ALJ was technically incorrect in describing Jones and Ellis as “parties,” we understand the ALJ to have recognized that Jones and Ellis were corporate officers whose testimony was likely to be critical to the respondent’s defense of the claim. Indeed, if these witnesses had not been permitted to testify, the respondent could not have presented any defense to the claimant’s factual representations. Further, the ALJ offered claimant’s counsel an opportunity to interview the witnesses prior to cross-examination, but claimant’s counsel declined. Neither did counsel request a continuance in order to investigate and rebut the testimony of these witnesses. Under these circumstances, the ALJ’s decision to permit the testimony was not beyond the bounds of reason because the testimony was potentially outcome determinative, and the inconvenience to the claimant was small. Indeed, the ALJ sought to protect the claimant’s due process rights and mitigate any inconvenience.
It follows the ALJ’s order was not erroneous insofar as was predicated on the testimony of Jones and Ellis. Thus, the order is supported by substantial evidence.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 12, 2001, 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. 2001. 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 March 28, 2002 to the following parties:
Jesse Lee Burrous, 113 S. Fountain St., Fountain, CO 80817
Rocky Mountain Elite Towing, 1500 ½ Arch, P. O. Box 6525, Colorado Springs, CO 80934
Barkley D. Heuser, Esq., 625 N. Cascade Ave., #300, Colorado Springs, CO 80903
BY: A. Pendroy