Ortega v. King Soopers, W.C. No. 4-720-369 (2008).

Industrial Claim Appeals Court

Final Order
Mr. Robert Ortega was a hardworking employee of King Soopers (respondent) where his duties included lifting materials and stocking grocery items. From his work, Mr. Ortega developed pain in his neck and hired Mr. Simon to help him receive the workers’ compensation benefits which he was entitled. Mr. Ortega was referred to Dr. Paz, who upon obtaining information from Mr. Ortega about a prior neck treatment, testified that Mr. Ortega’s symptoms and need for medical care were not related to his employment.
Regardless, Mr. Simon presented Mr. Ortega’s claim for workers’ compensation benefits to an administrative law judge (ALJ). The ALJ concluded that the totality of the medical reports did not establish an aggravation of Mr. Ortega’s preexisting neck condition and denied the claim.
Mr. Simon believed Mr. Ortega when he said that his injury was caused by his employment duties at King Soopers. Upon this belief, Mr. Simon filed an appeal of the ALJ’s dismissal with the Industrial Claim Appeals Office (the Panel).
To preface the difficulty of an appeal in workers’ compensation claims, there are several key concepts to understand. First, the ALJ is given extremely broad discretion to make finds of fact and inferences, compare the relative worth of all testimonies, and ultimately make a final binding order for the case. City of Aurora v. Vaughn, 824 P.2d 825 (Colo. App. 1991). Second, due to this large discretion, the Panel will only overturn an ALJ for an abuse of discretion when the record reveals abuse rising to a level that exceeds the bounds of reason or if there was fraud. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996); Louisiana Pacific Corp. v. Smith, 881 P.2d 456 (Colo. App. 1994). However, the Panel will uphold an ALJ’s decision if supported by substantial evidence in the record, even if an equally plausible decision could have been reached. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998).
Mr. Simon first argued that the ALJ’s refusal of a request for continuance was an abuse of discretion. Mr. Simon moved for a continuance of the hearing because, just prior to the hearing, Mr. Simon obtained a medical report that indicated the injury was work-related. The continuance was therefore to give Mr. Simon and opposing counsel the opportunity to question the report’s opining doctor before the claim was heard. Upon objection by the respondent, the ALJ denied the continuance, and excluded all untimely reports filed by both parties, including the report advantageous to Mr. Ortega.
Upon review of the record, the Panel found that, though the report was obtained shortly before the hearing, there was no record as to why the report was not obtained sooner. From the record, the Panel concluded that the ALJ’s finding that Mr. Simon failed to establish good cause for continuance was not an abuse of discretion.
Alternatively, Mr. Simon argued that Mr. Ortega was denied due process because of the ALJ’s strict interpretation of the rule requiring the exchange of medical records twenty days before the hearing. Though Mr. Simon argued that the correct interpretation of the “twenty day rule” allowed the ALJ to make an exception for the report since it was obtained within the twenty day limit, the ALJ strictly adhered to the twenty day limitation.
On review, the Panel stated that they did not “necessarily agree with the ALJ’s interpretation of (the twenty day rule).” However, the Panel was not persuaded by the facts of the case that the ALJ’s decision to exclude the testimony was outside the bounds of reason, and therefore did not violate Mr. Ortega’s due process rights.
Even in the face of time constraints, an unfavorable doctor’s report, and objections from opposing counsel, Mr. Simon did everything in his power to help Mr. Ortega.
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