W.C. No. 4-543-012Industrial Claim Appeals Office.
February 9, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which dismissed her claim for workers’ compensation benefits. We affirm.
The claimant alleged she sustained a work-related injury on April 29, 2002. Compensability was denied and a hearing was set for January 6, 2003, at 1:30 p.m. before ALJ Stuber. The claimant did not appear for the hearing, but was represented by her attorney of record. The respondents objected to proceeding with their medical expert in advance of the claimant’s testimony, and the claimant’s attorney requested a continuance.
ALJ Stuber declined to grant a continuance unless the claimant agreed to reimburse the respondents for their expert witness fees. (Tr. January 6, 2003, p. 6). The claimant’s attorney declined to assume that cost and offered no other testimony. Under these circumstances, ALJ Stuber issued an order to show cause why the claim should not be dismissed for lack of prosecution.
Based on the claimant’s affidavit in response to the show cause order, ALJ Stuber determined the claimant established good cause for her failure to appear on January 6, and therefore set aside the show cause order and granted leave to reset for a hearing on all disputed issues.
The respondents moved for reconsideration of the show cause order based on inconsistencies between the claimant’s affidavit and her attorney’s representations at the hearing. Following an evidentiary hearing, the ALJ found the claimant failed to establish good cause for her failure to appear at the hearing on January 6 or a continuance of that hearing. Therefore, the ALJ dismissed the claim.
On review the claimant contends the ALJ misapplied the law in finding the claimant failed to prove good cause for her failure to appear on January 6. The claimant also contends the ALJ abused her discretion in dismissing the claim as a sanction for the failure to establish good cause. We perceive no basis to disturb the ALJ’s order.
Initially, we note that the claimant’s Designation of Record includes the file maintained by the Division of Workers’ Compensation. The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. Further, our review is limited to the evidentiary record before the ALJ, and the record does not show the claimant requested the ALJ consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but have restricted our review to the record maintained by the Division of Administrative Hearings.
We also note that the record we received on December 18, 2003, does not contain a “Reply Brief” from the claimant. Accordingly, we need not consider the respondents’ December 23 Motion to Strike the Claimant’s Reply Brief.”
Section 8-43-207(1)(j), C.R.S. 2003, and the Rules of Procedure, Part VIII(C), 7 Code Colo. Reg. 1101-3, allow ALJs to continue a hearing to a later date upon a showing of “good cause” by the party seeking the continuance. In determining whether good cause exists for a continuance, the ALJ should consider “the circumstances of the particular case, weighing the rights of the party requesting the continuance to a fair hearing against the prejudice that may result from delay.” Cherry Creek School District #5 v. Voelker, 859 P.2d 805 (Colo. 1993).
The ALJ is vested with wide discretion in determining whether “good cause” has been established. Accordingly, we may not disturb the ALJ’s order denying the motion for continuance in the absence of a clear showing of an abuse of discretion. Cherry Creek School District #5 v. Voelker, supra; 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 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 applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
We also note that the ALJ is presumed to have considered the relevant factors, and is not held to a crystalline standard in articulating the basis for the order. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977); George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986).
The claimant’s arguments notwithstanding, the ALJ’s order reflects her consideration and application of the relevant factors in determining the claimant failed to establish good cause for a continuance of the January 6 hearing. The ALJ was not persuaded the claimant’s absence was caused by a misunderstanding of her attorney’s instructions. Instead, the ALJ found the claimant was aware of the hearing on January 6 and was aware that her attorney had not told her that the hearing was postponed. The ALJ found the claimant knew her attorney was waiting to hear if the respondents’ medical witness agreed to the postponement. Further, the ALJ found that contrary to the representation by claimant’s counsel at the hearing on January 6, the claimant was not too ill to appear for the hearing and chose on her own to go to another engagement for a friend instead of waiting to hear from her attorney as to whether the scheduled hearing on January 6 would proceed.
The claimant’s arguments notwithstanding, the ALJ’s findings are supported by substantial evidence and plausible inference drawn from the record. Further, the ALJ’s findings support the order denying the claimant’s request for a continuance of the hearing on January 6, 2003.
Since the claimant did not present any evidence, her failure to prove she sustained an injury arising out of and in the course of employment is fatal to the claim for workers’ compensation benefits. See §8-41-301(1)(b), C.R.S. 2003; City of Boulder v. Streeb, 706 P.2d 786
(Colo. 1985). There was thus no error in the dismissal of the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ 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. 2003. 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 order were mailed to the parties at the addresses shown below on February 9, 2004 by A. Hurtado.
Frances Williams, 3375 Glenarm Rd., #29, Colorado Springs, CO 80911
Lee McGill, Schlage Lock, 3899 Hancock Expressway, Colorado Springs, CO 80911
Evelyn Radmacher, ACE/ESIS, P. O. Box 911, Portland, OR 97207
Frederick W. Newall, Esq., 730 N. Weber, #101, Colorado Springs, CO 80903 (For Claimant)
Susan K. Reeves, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)