W.C. No. 4-320-307Industrial Claim Appeals Office.
April 21, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied temporary disability benefits. The claimant contends that the ALJ erred in failing to grant her motion for a continuance. We affirm.
The claimant applied for a hearing on the issues of compensability, medical benefits and temporary total disability benefits. At the commencement of the hearing before the ALJ, counsel for the claimant indicated that the only issue for adjudication was temporary disability benefits after February 24, 1997. (Tr. p. 4). In support, the claimant offered certain medical reports including a report from Dr. Turner dated May 9, 1997. The respondents objected to the admission of Dr. Turner’s report.
After the ALJ sustained the respondents’ objection, the claimant moved for a continuance. However, based upon further discussion concerning the relevance of Dr. Turner’s report, the respondents withdrew their objection. (Tr. p. 15). As a result, the ALJ indicated that he would consider the report and directed the claimant to proceed with her case in chief. (Tr. p. 15).
At the conclusion of the hearing the ALJ determined that the claimant failed to sustain her burden to prove an entitlement to temporary disability benefits. Therefore, the ALJ denied the requested temporary disability benefits.
On review, the claimant contends that the ALJ erred in denying the request for a continuance. She argues that the respondents delayed in providing a copy of Dr. Turner’s report to her and the ALJ should have granted the continuance so as to allow her to further “develop” the record concerning her temporary disability. We disagree.
An ALJ may continue a hearing to a later date upon a showing of “good cause,” by the party seeking the continuance. Section 8-43-207(1) (j), C.R.S. 1997; Rules of Procedure Part VIII(J),7 Code Colo. Reg. 1101-3, at 27. The ALJ is vested with wide discretion in determining whether “good cause” exists for a continuance. Accordingly, we may not disturb an ALJ’s ruling in the absence of a clear showing of an abuse of discretion. See Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993); Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986).
The standard on review of an alleged abuse of discretion is whether, under the totality of the circumstances, the ALJ’s ruling exceeds the bounds of reason. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). In applying this standard it is proper to consider whether the ALJ’s order is supported by the record and the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
As argued by the respondents, the record reflects that the claimant did not request a continuance prior to or at the commencement of the hearing. See (Tr. pp. 1-7; claimant’s “Position Statement” dated May 23, 1997). To the contrary, the claimant only requested a continuance after the ALJ sustained the respondents’ objection to the admission of Dr. Turner’s report. Specifically, the ALJ sustained the objection, and then stated that if the claimant considered Dr. Turner’s report crucial to the issue of temporary disability he would “listen to whatever motion” she wanted to make. In response, claimant’s counsel indicated that the claimant considered Dr. Turner’s report to be important to the issue of temporary disability and therefore, requested a continuance. (Tr. p. 7).
We note that even though the ALJ also sustained the respondents’ motion to strike a report from June Essing, the claimant verified the ALJ’s understanding that she was only asserting that Dr. Turner’s report was essential to the hearing. (Tr. p. 13). Consequently, there is substantial evidence to support the ALJ’s implicit determination that the claimant was only seeking a continuance if Dr. Turner’s report was excluded. (Tr. pp. 9, 11, 13). Moreover, the ALJ could reasonably infer that after the respondents withdrew their objection to Dr. Turner’s report, there was not good cause for a continuance. See (Tr. p. 15).
The ALJ’s determination is buttressed by the fact that the claimant did not renew her request for a continuance at any time after the respondents withdrew their objection. Rather, the claimant proceeded to present her case in chief. (Tr. pp. 15-21, 51-57); Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (waiver is the intentional relinquishment of a known right, which may be explicit or implicit). Under these circumstances, we cannot say that the ALJ’s failure to grant a continuance exceeds the bounds of reason. Therefore, the ALJ’s failure to grant a continuance was not an abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 21, 1998 to the following parties:
Dawn Plymale, 1543 E. 5th St., Loveland, CO 80537
Sandra Gibbons, Kan Build of Colorado, Inc., P.O. Box 867, Loveland, CO 80539
Kimberly Prieb, Zurich-American Insurance Group, P.O. Box 20048, Kansas City, MO 64195
Charles E. Withers, Esq., P.O. Box 4417, Boulder, CO 80306 (For the Claimant)
Marsha A. Kitch, Esq., 1675 Broadway, Ste. 2100, Denver, CO 80202 (For the Respondents)
BY: _______________________