W.C. No. 4-443-951Industrial Claim Appeals Office.
February 13, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied and dismissed the claim for additional permanent partial disability benefits. The ALJ ruled the claimant failed overcome the impairment rating issued by the Division-sponsored independent medical examination (DIME) physician. We affirm.
The claimant underwent a DIME on the issue of psychiatric impairment. The DIME physician assessed a 1 percent impairment rating by report dated February 13, 2001. In May 2001 the claimant filed an application for hearing on the issues of permanent partial disability benefits and medical benefits. At the hearing held September 5, 2001, claimant’s counsel indicated the claimant was already receiving necessary medical treatment, and the claimant wished to “withdraw” the issue permanent partial disability benefits. Counsel stated the claimant had been unable to procure “another medical opinion to overcome the DIME.” (Tr. p. 10). Respondents’ counsel stated the claimant had been evaluated by two doctors, and had ample time to prepare for the hearing. Consequently, the respondents took the position the request to “withdraw” the issue of permanent partial disability amounted to a request for a continuance, and the claimant failed to show good cause.
The ALJ proceeded with the hearing and the claimant did not present any evidence. The ALJ then found the claimant failed to overcome the DIME physician’s impairment rating.
The claimant filed a petition to review citing only general allegations of error. The claimant failed to file brief in support the petition to review. Consequently, we are limited in our ability to review the ALJ’s order.
The ALJ apparently viewed the request to withdraw the issue of permanent partial disability benefits as a request to continue the hearing to present additional evidence, and the ALJ implicitly denied the request. The ALJ has wide discretion to conduct evidentiary proceedings and determine whether or not good cause has been shown for a continuance. Section 8-43-207(1)(j), C.R.S. to 2001; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). We perceive no abuse of discretion in the ALJ’s denial of the claimant’s request to continue the hearing considering the claimant had ample time to procure evidence in support of the claim, but failed to do so. Further, the ALJ was free to consider the inconvenience and expense to the respondents in the event of another hearing. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra.
As the ALJ found, the claimant failed to present any evidence in support of the contention that the DIME physician’s impairment rating was incorrect. Consequently, the ALJ properly found the claimant failed to meet the burden of proof to overcome the DIME physician’s rating by clear and convincing evidence. Section 8-42-107 (8), C.R.S. 2001; McLane Western Inc. v. Industrial Claim Appeals Office, 996 P.2d 263 (Colo.App. 1999).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 7, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 13, 2002 to the following parties:
Terry Williams, 862 So.2d St., Brighton, CO 80601
USF Worldwide/Bert E. Jessup Transportation, Inc., Ben Lianeta, Jr., Intercargo Corp. Headquarters, 1450 E. American Ln., 20th Floor, Schaumburg, IL 60173
Hartford Accident Indemnity Insurance Company, _ Tanya Holmes, ITT Specialty Risk Services, Inc., P. O. Box 221700, Denver, CO 80222
Richard K. Blundell, Esq., and John W. Swanson, Esq., 1020 9th St., 3rd Floor, Greeley, CO 80631 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy