W.C. No. 4-369-997Industrial Claim Appeals Office.
March 25, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which determined the claimant suffered a compensable injury and required them to pay workers’ compensation benefits. The respondents contend the ALJ erred in refusing to allow the post-hearing presentation of additional evidence. We disagree, and therefore, affirm.
At the hearing on June 16, 1998, the claimant testified that he was injured on January 7, 1998, when he stepped out of his car and slipped on ice in the parking lot at the employer’s premises. The claimant stated that the injury occurred in the parking area where he had been directed to park by the employer’s store manager, Sandra Jones.
Crediting the claimant’s testimony that Ms. Jones instructed him where to park, the ALJ determined that the claimant sustained his burden to prove a compensable injury. Therefore, the ALJ ordered the respondents to provide medical and temporary disability benefits.
On appeal, the respondents contend that the claimant’s testimony concerning Ms. Jones is incredible. In support, the respondents attach an Affidavit, in which Ms. Jones denies instructing the claimant where to park. They also contend that they were surprised by the claimant’s testimony, and consequently, were not prepared to present Ms. Jones’ testimony at the hearing. Further, the respondents assert that Ms. Jones’ testimony is “outcome determinative.” Consequently, the respondents argue that the ALJ erred in refusing to grant their post-hearing request to present Ms. Jones’ testimony.
In a “Procedural Order” dated February 3, 1999, the ALJ denied the respondents’ request to present additional evidence. In support, the ALJ found that the respondents were aware that the pivotal issue in the case was whether the employer instructed the claimant where to park, and in fact, presented testimony from the claimant’s supervisor on the issue. The ALJ also found that the respondents conducted no discovery of the claimant prior to the hearing and did not request a continuance after the claimant testified about Ms. Jones’ instructions. Instead, the respondents waited until after the ALJ awarded benefits to request relief. Under these circumstances, the ALJ determined the respondents failed to establish grounds to reopen the record for the presentation of Ms. Jones’ testimony.
Pursuant to § 8-43-301(5), C.R.S. 1998, an ALJ may grant a post-hearing request to present additional evidence. The question is whether there is good cause for taking the additional evidence, and the ALJ must make this determination with an appreciation of the parties’ due process rights to present evidence in support of their position. Donn v. Industrial Claim Appeals Office, 865 P.2d 873 (Colo.App. 1993).
The ALJ retains wide discretion in determining whether to receive additional evidence following the apparent conclusion of the hearing, and we may not interfere with her decision unless there was an abuse of discretion. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). An abuse of discretion does not occur unless the ALJ’s decision is beyond the bounds of reason, as where it is unsupported by the law or the evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
In determining whether there has been an abuse of discretion we may consider several factors, including whether the additional evidence might be “outcome determinative,” and the inconvenience and expense to the opposing party if an additional hearing is held. See IPMC Transportation Co. v. Industrial Claim Appeals Office, supra; Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987). Further, we may consider whether the evidence might have been discovered before the hearing through the exercise of due diligence. Aspen Skiing Company v. Peer, 804 P.2d 166 (Colo. 1991).
However, our review is limited to the record before the ALJ. Section 8-43-301(8), C.R.S. 1998. Documents attached to briefs are not part of the evidence unless submitted at the time of the hearing, or otherwise admitted pursuant to the ALJ’s order. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Ms. Jones’ Affidavit was not submitted at the hearing, and was not subsequently admitted as part of the record. Consequently, we may not consider it on review.
Furthermore, we conclude that there is substantial evidence in the record to support the factual determinations the ALJ relied upon to find that the respondents failed to establish good cause for taking additional evidence. Consequently, we perceive no abuse of discretion in the ALJ’s refusal to reopen the claim for the presentation of additional testimony. See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Insofar as the respondents seek to reopen the claim on the grounds of error or mistake, their petition to reopen is not ripe for appellate review. Therefore, the respondents have failed to establish grounds which afford us a basis to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 25, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Robert M. Socolofsky
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. 1997.
Copies of this decision were mailed MARCH 25, 1999
the following parties:
Kurt E. Schneider, 5092 S. Albion Way, Littleton CO 80121
MJ Optical, 8838 Washington Circle, Omaha NE 68127-4011
Ms. Diana Gelbart, Hartford Insurance, 7670 S Chester Street, P.O. Box 22815, Englewood CO 80112
Kenneth M. Platt, Esq., 1199 Bannock St., Denver CO 80204 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe, TWR 3, Ste. 600, Denver CO 80202 (For Respondents)
Gregory W. Heron, Esq., Fogel, Keating and Wagner, PC, 1199 Bannock Street Denver CO 80204
BY: ______________