W.C. No. 4-249-158Industrial Claim Appeals Office.
April 18, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ), which awarded the claimant permanent partial disability benefits based on a twenty-four percent whole person medical impairment. We affirm.
The essential facts are not in dispute. The claimant sustained a compensable low back injury and reached maximum medical improvement in September 1995. The claimant was then seen by Dr. Gamble who opined that the claimant was suffering from a twenty-one percent whole person impairment.
The respondents requested an independent medical examination (IME) for purposes of contesting the claimant’s impairment rating. The IME was conducted by Dr. Greenberg, who issued a report on December 1, 1995. Dr. Greenberg opined that the claimant sustained a ten percent whole person impairment pursuant to Table 53(II)(E), of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides).
In January or February 1996, the claimant applied for a hearing on the issue of permanent partial disability benefits, and listed Dr. Bralliar as a witness. On February 26, 1996, counsel for respondents filed a response to the application listing Dr. Greenberg as a witness. At the April 30, 1996 hearing, counsel for respondents admitted that he was aware of the hearing date by February 6. (Tr. p. 4).
On April 26, 1996, counsel for respondents filed a “Motion to Continue.” The motion alleged that, on April 18, 1996, counsel had contacted Dr. Greenberg’s office to determine the doctor’s availability to testify at the April 30 hearing. However, counsel learned that Dr. Greenberg would be “out of town from April 19, 1996 to May 6, 1996.”
At the hearing, the ALJ denied the respondents’ motion for a continuance to present the testimony of Dr. Greenberg. The ALJ ruled that a continuance was inappropriate because respondents’ counsel did not attempt to contact Dr. Greenberg until twelve days prior to the hearing, and because counsel was aware of the need for Dr. Greenberg’s testimony as early as February 1996. The court observed that, if counsel had attempted to contact Dr. Greenberg in February, it would have been possible to select another date for the hearing, or to depose the doctor prior to the hearing. (Tr. pp. 5-9).
After denying the motion, the ALJ the conducted a hearing at which Dr. Bralliar testified. Dr. Bralliar opined that Dr. Greenberg’s rating was not in accordance with the AMA Guides because Dr. Greenberg improperly utilized straight leg raising tests to exclude impairment ratings for the claimant’s reduced extension, and lateral flexion. Dr. Bralliar also opined that the claimant had a twenty-four percent whole person impairment under the AMA Guides.
The ALJ credited Dr. Bralliar’s testimony. Consequently, the ALJ determined that the claimant overcame Dr. Greenberg’s IME rating by clear and convincing evidence, and awarded permanent partial disability benefits accordingly.
On review, the respondents contend that the ALJ erred in denying their motion for a continuance. The respondents argue that Dr. Greenberg’s testimony was essential to rebut Dr. Bralliar’s testimony concerning the proper application of the AMA Guides. We are not persuaded.
ALJs have 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. (1996 Cum. Supp.); § 8-43-209, C.R.S. (1996 Cum. Supp.). An ALJ should grant a continuance only “when the interests of all parties will be served.” Section 8-43-209.
Within these parameters, ALJs have wide discretion in determining whether to grant continuances, and we will not interfere with such determinations unless an abuse is shown. Cherry Creek School District No. 5 v. Voelker, 859 P.2d 805(Colo. 1993); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse of discretion does not exist unless an ALJ’s decision is beyond the bounds of reason. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
As the respondents argue, one factor which the ALJ may consider is whether the presentation of additional evidence could be “outcome determinative.” Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987); Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983). However, a party does not have an absolute right to a continuance, and the ALJ may evaluate whether the party has exercised due diligence to obtain the evidence for presentation at the hearing, as well as the inconvenience and expense to the opposing party if a continuance is granted. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra. With regard to due diligence, the ALJ may consider whether the unavailability of a witness is sudden or unexpected. Cherry Creek School District No. 5 Voelker, supra.
Here, we perceive no abuse of discretion in the ALJ’s denial of the motion for a continuance. As the ALJ recognized, due diligence on the part of respondents’ counsel would probably have revealed by February 1996 that Dr. Greenberg would be unavailable to testify at the April 30, 1996 hearing. In this sense, Dr. Greenberg’s unavailability was neither sudden nor unexpected.
Further, granting a continuance would have required the expenditure of a additional administrative resources, and imposed further delay and inconvenience on the claimant. It should be recognized that the respondents themselves requested the IME, and therefore, delayed the ultimate adjudication of the claimant’s entitlement to permanent partial disability benefits. While it is true that the presentation of Dr. Greenberg’s testimony might have been outcome determinative, we cannot say that this factor is so compelling that the ALJ’s denial of the continuance is beyond the bounds of reason.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed April 18, 1997 to the following parties:
Barry Crouse, 580 5th St., Burlington, CO 80807
City of Burlington, 415 15th St., Burlington, CO 80807
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Dan N. Hover, Esq., 3900 E. Mexico, #502, Denver, CO 80210 (For the Claimant)
By: _______________________________