A PUBLICATION BY THE LAW FIRM OF

Clifton, Mueller & Bovarnick, P.C.

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                                                                          ATTORNEYS AT LAW

2009

February-march

Better to Comply with 20-Day Rule Than to Rely on Exception Discretion

In Ortega v. Industrial Claim Appeals Office and King Soopers, decided February 19, 2009, the claimant sought review of a Final Order of the Industrial Claim Appeals Office (ICAO) affirming the ALJ’s denial and dismissal of his claim for benefits.  Specifically, the claimant challenged the ALJ’s denial of a continuance and exclusion of his untimely-submitted medical reports.  In particular, the claimant challenged the ALJ’s interpretation of the “twenty day rule” set forth in C.R.S. § 8-43-210.  The Court of Appeals affirmed ICAO’s order.  At the hearing in the claim, claimant’s attorney informed the ALJ that his client recently provided him with a personal physician’s

report indicating the claimant’s injury was work-related and requested a continuance.  The Respondents objected, stating a continuance was not necessary and offering to stipulate to the admission of the untimely report if claimant assented to the admission of Respondents’ late reports.  The claimant objected to Respondents’ untimely submissions.  The ALJ excluded both parties’ untimely submitted medical reports, concluding, “[Section 8-43-210] says documents are not admitted unless exchanged more than 20 days ahead of time, and there is no exception to that rule.”  The Court agreed that the statutory twenty-day rule requires that "[a]ll relevant medical records, vocational reports, expert witness reports, and employer records shall be exchanged with all other parties at least twenty days prior to the hearing date." (Emphasis in decision.)  However, the court disagreed with the ALJ’s analysis that there are no exceptions to the rule.  The court held, while the plain language mandates a twenty-day rule for the exchange of the enumerated records and reports, the immediately preceding provision states, that once the hearing begins, "the administrative law judge may, for good cause shown, continue the hearing to a date certain to take additional testimony, to file an additional medical report, to file the transcript of a deposition, or to file a position statement.” Therefore, the court held the ALJ’s strict reading of the statute “unwarranted”.  Exceptions are clearly contemplated by the allowance of continuances to file additional reports in

appropriate circumstances.  Nonetheless, the court held, based on this record, the ALJ’s misinterpretation of the statute did not require a different result.  The Court’s holding in Ortega highlights the importance of the timely provision of medical and employment records to opposing counsel.   While an ALJ has the discretion to continue a hearing for the exchange of records, good cause must be shown.  A Judge’s decision not to continue a hearing for the submission of additional evidence is unlikely to be reversed on appeal absent an abuse of discretion.  An abuse of discretion only occurs when the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to the law.

MEA CULPA

The December-January 2009 issue of Defense Talk mistakenly reported that, effective January 1, 2009, the Division of Workers’ Compensation mileage reimbursement rate for claimant’s travel to medical appointments was 46 cents.  The correct mileage reimbursement rate, effective January 1, 2009, is 55 cents per mile.