W.C. No. 4-246-365Industrial Claim Appeals Office.
March 5, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), which denied his claim for workers’ compensation benefits. We affirm.
The claimant alleged that he sustained a compensable injury while attending a ski instructor training class. A hearing was held on September 5, 1995, and the claimant appeared pro se.
On October 20, 1995, the ALJ entered an order denying the claim. The ALJ found that the claimant’s attendance at the ski instructor class was not a part of, or incident to the claimant’s employment. The ALJ’s conclusion was partially based on the finding that the claimant was not paid for attendance at the class.
Following entry of the order, the claimant retained counsel who filed a petition to review the October 20 order. In the petition, counsel requested that the claimant be afforded an opportunity to present new evidence that the claimant was actually paid for his attendance at the class. However, the ALJ transmitted the matter to us for review, and therefore, implicitly denied the request for an additional hearing. Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).
On review, the claimant contends that the matter should be “reopened” because the ALJ “mistakenly” denied the claim. The claimant does not deny that the ALJ’s findings of fact and conclusions of law are supported by the evidence, but contends that the ALJ would have reached different findings and conclusions had the claimant been afforded an opportunity to present evidence that he was paid for his attendance at the ski clinic. In support of his position, the claimant argues that, because he was pro se at the hearing, he was unaware of his right to subpoena witnesses and evidence, and was unaware of how to conduct cross-examination. We are not persuaded.
Initially, this case is not postured as a “petition to reopen.” Rather, the claimant filed a timely petition to review the ALJ’s order. Consequently, the case is most properly viewed as involving the ALJ’s denial of the claimant’s request to present additional evidence following the hearing.
An ALJ has discretionary authority to order the taking of additional evidence following the apparent completion of a hearing. Section 8-43-207(1)(j), C.R.S. (1995 Cum. Supp.); § 8-43-301(5), C.R.S. (1995 Cum. Supp.). However, because this authority is discretionary, we may not interfere absent an abuse of discretion. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
One factor to be considered in determining whether to grant a continuance for the taking of additional evidence is whether the additional evidence might be “outcome determinative.” Raffaelo v. Industrial Commission, supra. However, the ALJ may consider the inconvenience and expense to the opposing party if a continuance is granted. Where the basis for an additional hearing is “newly discovered evidence,” the ALJ may consider whether the evidence could have been presented at the prior hearing through the exercise of due diligence. See Kennedy v. Bailey, 169 Colo. 43, 453 P.2d 808 (1969).
Here, there is some basis for believing that the evidence which the claimant seeks to present would be “outcome determinative.” New evidence that the claimant was paid for his attendance at the ski class would significantly undermine the basis of the ALJ’s denial of benefits.
However, the claimant makes no assertion that this evidence could not have been discovered and presented at the time of the original hearing. In fact, the claimant merely alleges that he was unaware of his procedural right to compel the presence of witnesses and the production of documents. Therefore, this case does not involve “newly discovered evidence” which could not have been presented through the exercise of due diligence. Consequently, we perceive no abuse of discretion in the ALJ’s refusal to grant an additional hearing to present the evidence.
Moreover, the fact that the claimant appeared pro se at the hearing does not change the result. Pro se litigants must adhere to the same principles and procedures as those who are qualified to practice law. Further, pro se parties must be prepared to accept the consequences of their own tactical and procedural errors. Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (1980); Rosenberg v. Grady, 843 P.2d 25 (Colo.App. 1992).
IT IS THEREFORE ORDERED that the ALJ’s order, dated October 20, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
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. (1995 Cum. Supp.).
Copies of this decision were mailed March 5, 1996 to the following parties:
T. Brett Feeney, 5581 Edita Ave., Westminster, CA 92863
Steamboat Ski Resort Corp., Attn: Christina Slade, 2305 Mt. Werner Circle, Steamboat Springs, CO 80487-9023
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80111
Michael A. Lassota, Esq., 538 Breeze St., Craig, CO 81625
(For Claimant)
Raymond A. Melton, Esq., 1120 Lincoln St., #1606, Denver, CO 80203
(For Respondents)
By: _____