W.C. No. 4-328-6190Industrial Claim Appeals Office.
April 15, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) dated January 7, 1999, which denied his claim for temporary disability benefits prior to October 31, 1997. We affirm.
The claimant suffered a compensable injury on February 2, 1995, while working as an Assistant Manager for the Gasamat Oil Corporation (Gasamat). The claimant continued to work for Gasamat until March 27, 1995. Between April 12, 1995 and May 5, 1995, the claimant was employed by the Plantorium. The claimant subsequently worked at Comsco until February 12, 1997. The claimant requested temporary total and temporary partial disability benefits for various periods commencing March 27, 1995.
The claimant testified that as a result of the industrial injury he was physically unable to perform his regular employment after March 27, 1995. Furthermore, he stated that his temporary disability was the cause of his subsequent employment separations from Gasamat, Plantorium, and Comsco.
At the conclusion of the claimant’s case-in-chief the respondents offered the testimony of Larry Ortivez (Mr. Ortivez), to refute the claimant’s evidence that the termination of his employment at the Plantorium was due to physical limitations resulting from the industrial injury. The respondents’ Response to the Application for Hearing did not expressly list Ortivez as a witness. However, the day before the hearing the respondents filed a pleading which identified Ortivez as a “potential rebuttal witness.” The claimant objected to the presentation of testimony from Mr. Ortivez on grounds that the respondents did not comply with the Rules of Procedure VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. That rule precludes a party from presenting the testimony of an unendorsed witness except upon agreement of the parties or approval from the ALJ for “good cause shown.”
The ALJ found that Mr. Ortivez was a “rebuttal” witness, and therefore, the ALJ determined that the respondents were not required to establish “good cause” for presenting his testimony. Furthermore, crediting the testimony of Mr. Ortivez, the ALJ found that the claimant was discharged from the Plantorium for poor job performance unrelated to the industrial injury. The ALJ also found that the claimant failed to prove that he was temporarily disabled before October 31, 1997. Therefore, in an order dated March 19, 1998, the ALJ denied the claim for temporary disability benefits prior to October 31, 1997. The claimant timely appealed.
On review, we concluded that the ALJ erroneously characterized Mr. Ortivez as a “rebuttal” witness. Therefore, in an order dated October 28, 1998, we set aside the ALJ’s order and remanded the matter for a determination of whether the respondents established “good cause” to present Mr. Ortivez’s testimony despite their failure timely to endorse him.
On remand, the ALJ determined that it was proper to allow the disputed testimony because the respondents’ Response to Application for Hearing endorsed, “any witnesses necessary for impeachment, foundation or rebuttal.” The ALJ also determined that Mr. Ortivez directly contradicted and impeached the claimant’s testimony that he requested a light duty assignment at the Plantorium because of physical limitations stemming from the industrial injury. Therefore, the ALJ determined that there was “good cause” to allow the testimony of Mr. Ortivez. Further, the ALJ determined that “even without consideration of the testimony of Mr. Ortivez, the Claimant’s testimony that he requested light duty or was unable to work is neither credible nor persuasive.” (Finding of Fact 9). Consequently, the ALJ determined that the claimant failed to prove a compensable wage loss before October 31, 1997.
On review, the claimant contends that the ALJ erred in finding that the respondents properly endorsed Mr. Ortivez in their Response to Application for Hearing. The claimant also contends that the ALJ erroneously relied on the testimony of Mr. Ortivez to find that “good cause” was shown to allow Ortivez’s testimony. Further, the claimant contends that the ALJ’s erroneous admission of Ortivez’s testimony was not harmless error.
We assume arguendo, that the ALJ erred in finding that the respondents complied with Rule VIII(A). Nevertheless, we perceive no abuse of discretion in the ALJ’s finding that the respondents’ established “good cause” for the presentation of the testimony of Ortivez.
The ALJ has wide discretion in determining whether a party has established good cause for the late endorsement of a witness, and thus, we may not disturb the ALJ’s determination in the absence of an abuse of discretion. See IP MC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). The standard on review of an alleged abuse of discretion is whether the ALJ’s ruling “exceeds the bounds of reason.” See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
In determining whether good cause has been established the ALJ may consider several factors including inconvenience and expense to the opposing party in allowing the disputed testimony Cf. Cherry Creek School District #5 v. Voelker, 859 P.2d 805
(Colo. 1993); IPMC Transportation Co. v. Industrial Claim Appeals Office, supra. The ALJ is also permitted to consider whether the evidence may be “outcome determinative.” See Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987) Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983). To determine whether the disputed testimony is “outcome determinative” the ALJ must necessarily consider the nature of the testimony and its possible affect on other evidence in the case. It follows that an ALJ may consider the substance of the disputed testimony in determining whether there is good cause to allow the presentation of the evidence.
Here, the ALJ determined that the testimony of Mr. Ortivez was “outcome determinative” insofar as it directly refuted the claimant’s testimony that he informed the Plantorium of his industrial disability and was discharged due to the disability. (See Finding of Fact 7). Furthermore, the ALJ’s order reflects his determination that this factor outweighed the potential inconvenience to the claimant.
The claimant concedes that he knew the day before the hearing that the respondents intended to call Mr. Ortivez as a witness. (Tr. pp. 36, 37). Further, Mr. Ortivez was called for the limited purpose of refuting the claimant’s testimony that he requested light duty work at the Plantorium and was not terminated for poor performance.
More importantly, after the presentation of the testimony of Mr. Ortivez the claimant did not offer rebuttal evidence nor request a continuance to obtain and present additional evidence. (Tr. pp. 37, 43). Under these circumstances, we cannot say that the ALJ’s determination of “good cause” exceeds the bounds of reason. Therefore, we need not consider the claimant’s harmless error analysis.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 7, 1999, 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. 1998.
Copies of this decision were mailed APRIL 15, 1999
to the following parties:
Kenneth W. Campbell, 2212 Charolais Dr., Ft. Collins, CO 80526
Gasamat Oil Corporation of Colorado, P.O. Box 18690, Boulder, CO 80308
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Charles E. Withers, Esq., P.O. Box 4417, Boulder, CO 80306-4417 (For Claimant)
Kyle L. Thacker, Esq., 2629 Redwing Rd., Ste. 330, Fort Collins, CO 80526
BY: AP