W.C. No. 4-626-473.Industrial Claim Appeals Office.
October 28, 2005.
ORDER OF REMAND
The claimant seeks review of an order dated May 19, 2005 of Administrative Law Judge Jones (ALJ) that denied and dismissed the claim for compensation. The claimant contends that the ALJ abused her discretion in permitting a post-hearing deposition, and in denying him the opportunity to present rebuttal evidence. We set aside the ALJ’s order and remand for further findings.
This matter was set for hearing on February 17, 2005, pursuant to the claimant’s application for hearing alleging a shoulder injury that occurred on August 5, 2004. The respondents filed a response to the application for hearing endorsing several witnesses, including Gregory Reichhardt, M.D. The respondents scheduled the claimant for an independent medical examination (IME) with Dr. Reichhardt, to be conducted on February 14, 2005. A prehearing conference was held on February 2, 2005, following which the prehearing administrative law judge (PALJ) entered an order partially granting the claimant’s Motion for Protective Order filed to strike the IME. The PALJ ruled that the respondents may require the claimant to undergo an IME, but that “no evidence of the findings or opinions of that examination is admissible at the February 17, 2005 Hearing.”
The hearing scheduled for February 17, 2005 was continued at a status conference held on February 16, 2005. The hearing date was rescheduled for March 1, 2005, and the ALJ also continued the PALJ’s order until that time. Dr. Reichhardt appeared at the March 1st hearing pursuant to the respondents’ subpoena, and the claimant argued that the PALJ’s order should be enforced. Following argument the ALJ ruled that Dr. Reichhardt would not be permitted to testify, and she precluded admission of any of the doctor’s findings or opinions resulting from the February 14th IME. At the conclusion of the hearing the ALJ provided the parties ten days, until March 11th, within which to file position statements and stated that “the hearing will be deemed concluded on that date.” Tr. p. 70. The following day the ALJ issued a “Post-Hearing Procedural Order” reconsidering her ruling precluding the testimony of Dr. Reichhardt. The order stated that Dr. Reichhardt was properly endorsed as a witness and that the ALJ perceived “no basis” to exclude his testimony. Accordingly, she ordered that the hearing was reopened to receive his testimony, which could be in person, by telephone, or by deposition. The order also stated that the claimant “shall be provided an opportunity to present rebuttal evidence,” and it ordered the parties to consult and advise the ALJ “of how this case will proceed.” By correspondence to the ALJ dated March 11, 2005 the respondents informed her that the deposition of Dr. Reichhardt was being scheduled, and requested that submission of the position statements be deferred until ten days following the deposition. The deposition of Dr. Reichhardt was then conducted on April 15, 2005 and on April 25, 2005 the respondents filed a position statement arguing that the claimant had failed to carry his burden of proving a compensable shoulder injury.
On May 10, 2005 the claimant filed a “Contested Motion to Reopen Evidence and Permit Additional Discovery.” The ALJ denied the motion and on May 19, 2005 entered the order presently under review.
The claimant contends on appeal that the ALJ’s order should be vacated because the hearing was not completed within 160 days as required by §8-43-215(1), C.R.S. 2005, that the respondents’ response to the application for hearing was untimely and Dr. Reichhardt should not have been permitted to testify, and that the ALJ abused her discretion in denying the claimant the opportunity to present rebuttal evidence. We conclude that the ALJ’s findings are insufficient to permit appellate review.
First, we disagree with the claimant that § 8-43-215(1) requires that the ALJ’s order be vacated because the hearing was not completed within 160 days. The statute provides that “[a]ny hearing . . . shall be completed within one hundred twenty days, or in the case where an extension of time of sixty days is allowable under the provisions of section 8-43-209, one hundred sixty days, after a request therefor pursuant to section 8-43-211(2).” Generally, in the absence of a clear expression of legislative intent that a time period is jurisdictional, language such as that used in § 8-43-215(1) is directory rather than mandatory. See Langton v. Rocky Mountain Health Care Corporation, 937 P.2d 883 (Colo.App. 1996). We have previously held that the provisions of § 8-43-215(1) are directory, and we adhere to our prior conclusion that the expiration of the 160 day period in the statute does not deprive the ALJ of jurisdiction to enter an order. Andrews v. Weld County, W.C. No. 3-927-353 (July 15, 2005); Palacios-Ortiz v. Excel Corporation, W.C. No. 4-5217-581 (April 2, 2004).
We also disagree that because the response to the application for hearing was untimely the ALJ abused her discretion by permitting Dr. Reichhardt to testify. We are unable to locate anything in the record establishing that the claimant raised this procedural argument at an appropriate time. A review of the record indicates that the timeliness of the response to the application was first raised in the claimant’s motion to reopen the evidence and permit additional discovery. This was long after the prehearing conference had occurred, it was after the evidentiary hearing had taken place, and over twenty days after the witness had testified by deposition. An objection regarding the timely endorsement of a witness must be raised at or before the hearing or it is considered waived. Cf. Kuziel v. Pet Fair, Inc., 931 P.2d 521 (Colo.App. 1996) (procedural issues not raised to the ALJ are considered waived).
We are unable to ascertain, however, the basis for the ALJ’s denial of the claimant’s motion. We conclude, therefore, that the ALJ’s findings are insufficient to permit appellate review and that a remand for further findings is necessary. As noted, the ALJ’s order permitting Dr. Reichhardt’s testimony directed the parties to consult and ordered that “the parties shall advise the ALJ, in writing, of how this case will proceed.” Consistent with that order, the respondents wrote a letter to the ALJ advising her that the deposition was being scheduled and requested that the time within which to submit positions statements be extended to ten days following the deposition or the presentation of the claimant’s rebuttal evidence. Admittedly, the respondents did not represent in that letter that they spoke for all parties and the claimant did not write separately to the ALJ, either endorsing the respondents’ letter, objecting to it, or otherwise stating some other understanding of “how this case will proceed,” as instructed by the ALJ in her order. However, the letter itself appeared to recognize that the claimant reserved the right to put on rebuttal evidence.
The deposition occurred and the respondents filed a position statement following the passage of ten days. On May 10, 2005, ten days after the filing of the respondents’ position statement, the claimant filed his motion to reopen the evidence and to permit additional discovery. The respondents filed an opposition to the claimant’s motion, in which they appeared to concede the right of the claimant to present rebuttal evidence. Indeed, the relief requested by the respondents was entry of an order requiring the claimant to present that rebuttal evidence within thirty days.
As noted, rather than grant that relief, the ALJ denied the motion without explanation. It is true that the ALJ could plausibly have inferred from this course of proceedings that by failing to assert the opportunity to put on rebuttal evidence within ten days from the date of the deposition the claimant waived the right to present further evidence. Waiver is implied by acts or conduct manifesting an intent to relinquish a known right or privilege. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). However, we are unable to discern from the ALJ’s order that she invoked the principle of waiver in this case to bar the claimant’s right to present rebuttal evidence.
In the absence of an explanation for her ruling, we may not presume that the claimant’s conduct worked a waiver of his rights to present evidence in rebuttal to Dr. Reichhardt’s testimony. This is especially true given that portion of the ALJ’s procedural order stating that “Claimant shall be provided an opportunity to present rebuttal testimony,” and given the claimant’s apparent reservation of that right in the respondents’ letter to the ALJ, and the respondents’ concession that the right still existed at the time of the claimant’s motion. We note that we do not rule in this order that the ALJ did or did not abuse her discretion in denying the claimant’s motion. It is merely that, in light of the affirmative grant to the claimant of the right to put on rebuttal evidence, it would be conjecture on our part to presume that the ALJ found a waiver of that right. Our order should not be understood as dictating to the ALJ any outcome, and the ALJ may take any appropriate action on remand.
On remand the ALJ shall enter findings and conclusions sufficient to permit appellate review of her order denying the claimant’s motion, and shall take any other action deemed by her appropriate in the adjudication of this claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 19, 2005, is set aside and the matter is remanded for proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
Anselmo Puga, Greeley, CO, Mile Hi Sheep Company, Greeley, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Britton Morrell, Esq., Greeley, CO, (For Claimant).
T. Paul Krueger, II, Esq. and Ronda K. Comings, Esq., Fort Collins, CO, (For Respondents).