CO Code § 8-43-207 (2021)
2021 Colorado Code|Title 8 - Labor and Industry|Article 43 - Procedure|Part 2 - Settlement and Hearing Procedures|§ 8-43-207. Hearings

  Hearings shall be held to determine any controversy concerning any issue arising under articles 40 to 47 of this title. In connection with hearings, the director and administrative law judges are empowered to:   In the name of the division, issue subpoenas for witnesses and documentary evidence which shall be served in the same manner as subpoenas in the district court;    Administer oaths;    Make evidentiary rulings;    Limit or exclude cumulative or repetitive proof or examination;    Upon written motion and for good cause shown, permit parties to engage in discovery; except that permission need not be sought if each party is represented by an attorney. The director or administrative law judge may rule on discovery matters and impose the sanctions provided in the rules of civil procedure in the district courts for willful failure to comply with permitted discovery.    Upon written motion and for good cause shown, conduct prehearing conferences for the settlement or simplification of issues;    Dispose of procedural requests upon written motion or on written briefs or oral arguments as determined appropriate;    Control the course of the hearing and the conduct of persons in the hearing room;    Upon written motion and for good cause shown, grant reasonable extensions of time for the taking of any action contained in this article;    Upon good cause shown, adjourn any hearing to a later date for the taking of additional evidence;    Issue orders;    Appoint guardians ad litem, as appropriate, in matters involving dependents' claims, and assess the reasonable fees and costs, therefore, from one or more of the parties;    Determine the competency of witnesses who testify in a workers' compensation hearing or proceeding and the competency of parties that have entered into settlement agreements pursuant to section 8-43-204. Such competency determinations shall only be for the purpose of the particular workers' compensation proceeding.    Dismiss all issues in the case except as to resolved issues and except as to benefits already received, upon thirty days notice to all the parties, for failure to prosecute the case unless good cause is shown why such issues should not be dismissed. For purposes of this paragraph (n), it shall be deemed a failure to prosecute if there has been no activity by the parties in the case for a period of at least six months.    Set aside all or any part of any fee for medical services rendered pursuant to articles 40 to 47 of this title if an administrative law judge determines after a hearing that, based upon a review of the medical necessity and appropriateness of care provided pursuant to said articles, any such fee is excessive or that the treatment rendered was not necessary or appropriate under the circumstances. If all or part of any fee for medical services is set aside pursuant to this paragraph (o), the provider of any such services shall not contract with, bill, or charge the claimant for such fees and shall not attempt in any way to collect any such charges from the claimant. No fee for medical services shall be set aside pursuant to this paragraph (o) if the treatment was authorized in writing by the insurer or employer.    Impose the sanctions provided in the Colorado rules of civil procedure, except for civil contempt pursuant to rule 107 thereof, for willful failure to comply with any order of an administrative law judge issued pursuant to articles 40 to 47 of this title;    Require repayment of overpayments.       Notwithstanding any other provision of this article 43, neither the director nor an administrative law judge shall determine the issues of the compensability of a claim or the liability of any party to a claim unless specific benefits or penalties are awarded or denied contemporaneously with the determination.     History. Source: L. 90: Entire article R&RE, p. 504, § 1, effective July 1. L. 91: (1)(e) and(1)(n) amended and (1)(o) and (1)(p) added, p. 1317, § 27, effective July 1. L. 97: (1)(q) added, p. 114, § 4, effective July 1. L. 98: (1)(e) amended, p. 147, § 1, effective April 2. L. 2011: (1)(e) amended,(SB 11-199), ch. 196, p. 759, § 2, effective May 23. L. 2021: (2) added,(HB 21-1050), ch. 384, p. 2573, § 8, effective September 7.    Editor's note:    This section is similar to former § 8-53-103 as it existed prior to 1990.    Section 13(2)(a) of chapter 384 (HB 21-1050), Session Laws of Colorado 2021, provides that the act changing this section applies to workers' compensation claims pending or filed on or after September 7, 2021.     ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. POWERS OF THE DIRECTOR AND HEARING OFFICERS.    III. EVIDENCE.     I. GENERAL CONSIDERATION.   Law reviews. For note, “Use of Evidence in Hearings Before Colorado Administrative Agencies”, see 29 Dicta 437 (1952). For note, “The Right to Cross-Examine Adverse Witnesses as a Part of Due Process in Hearings Before Colorado Agencies”, see 31 Dicta 383 (1954). For article, “Medical Utilization Review Under Worker's Compensation”, see 17 Colo. Law. 1995 (1988). For article, “An ALJ's View: The New, Unified Hearings in Worker's Compensation Cases”, see 18 Colo. Law. 2327 (1989). For article, “Failed Claim Closure: The Effect of Crigger on Workers' Compensation”, see 44 Colo. Law. 47 (Jan. 2015).   Annotator's note. Since § 8-43-207 is similar to § 8-53-103 as it existed prior to the 1990 repeal and reenactment of the “Workers' Compensation Act of Colorado”, articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.   Jurisdictional challenge to hearing officer. Additional hearing required where claimant alleged that hearing officer lacked jurisdiction to enter an order after the hearing officer had terminated his employment. Welch v. Indus. Comm'n, 722 P.2d 439 (Colo. App. 1986).   Retrospective application of section by administrative law judge (ALJ) in order to determine whether claimant was competent at the time he entered into the settlement agreement was proper because it effected a procedural rather than a substantive change. Powderhorn Coal Co. v. Weaver, 835 P.2d 616 (Colo. App. 1992).   The administrative and judicial review provisions of the Act are complete, definitive, and organic, without the need of supplementation from other legislative acts or the procedural relief afforded by C.R.C.P. 16. Gardner v. Friend, 849 P.2d 817 (Colo. App. 1992).   General extension-of-time provision in subsection (1)(i) does not overcome the jurisdictional time limits set forth elsewhere in the act. Speier v. Indus. Claim Appeals Office, 181 P.3d 1173 (Colo. App. 2008).   An aggrieved party to a medical utilization review proceeding may request an evidentiary hearing under former § 8-53-103 if the order of the director of the division of labor terminates a medical benefit or if a party seeks to terminate medical benefits based on the review proceedings. Hargett v. Dir., Div. of Labor, 854 P.2d 1316 (Colo. App. 1992) (decided under former § 8-53-103 as it existed prior to the 1990 repeal and reenactment of the “Workers' Compensation Act of Colorado”, articles 40 to 47 of title 8).   If the issue in controversy involves the necessity and appropriateness of medical care, rather than industrial disability, the medical utilization committee reports and the director's order based thereon are admissible in hearings under former § 8-53-103 , subject to the hearing officer's evidentiary rulings. Hargett v. Dir., Div. of Labor, 854 P.2d 1316 (Colo. App. 1992) (decided under former § 8-53-103 as it existed prior to the 1990 repeal and reenactment of the “Workers' Compensation Act of Colorado”, articles 40 to 47 of title 8).   Party adversely affected by a medical utilization review proceeding can request that the matter be litigated de novo in a hearing under this section. Donn v. Indus. Claim Appeals Office, 865 P.2d 873 (Colo. App. 1993).   Where the director's medical utilization review order issued pursuant to § 8-43-501 terminates the claimant's care by a previously authorized health care provider, the claimant is entitled to have the order adjudicated de novo by an ALJ. McWhorter v. CNA Ins. Co., 868 P.2d 1128 (Colo. App. 1993).   II. POWERS OF THE DIRECTOR AND HEARING OFFICERS.   Broad powers are granted by this section and govern all proceedings on an initial claim or upon reopening. Colo. Auto Body, Inc. v. Newton, 160 Colo. 113 , 414 P.2d 480 (1966).   Under the broad powers granted by this section, the ALJ committed no abuse of discretion by joining parties when the question of their liability had been raised and the joinder posed no risk of prejudice. Renaissance Salon v. Indus. Claim Appeals Office, 994 P.2d 447 (Colo. App. 1999).   Power to give notice, adjourn hearing, and give parties right to be present. When it develops at a hearing that there is a possibility that disabilities in connection with which the claimant is seeking additional compensation might be the result of another accident, under this section -- either upon the application of “any party” or upon its own motion -- the fact-finder is empowered to send reasonable notice to all interested parties and to adjourn the hearing from time to time and to give all parties the right to be present. Colo. Auto Body, Inc. v. Newton, 160 Colo. 113 , 414 P.2d 480 (1966).   Questions of fact can be determined only by the fact-finder. Roper v. Indus. Comm'n, 93 Colo. 250 , 25 P.2d 752 (1933); O.P. Skaggs Co. v. Nixon, 97 Colo. 314 , 50 P.2d 55 (1935).   Fact-finder determines which of two causes produced injury. Where an existing condition may result from one of two causes shown in the evidence, it is the province of the director fact finder to determine which of these two causes produced the result of which complaint is made. Indus. Comm'n v. Barton, 98 Colo. 51 , 52 P.2d 670 (1935).   Hearing officer has discretion to reject consolidation of claims when issues are distinct and claimant will have future opportunity to litigate other claims. Roe v. Indus. Comm'n, 734 P.2d 138 (Colo. App. 1986).   Evidentiary decisions are firmly within an ALJ's discretion and will not be disturbed absent a showing of abuse of that discretion. ALJ's ruling that feeling and examining claimant's shoulder during the hearing was not relevant to the causation issue was not an abuse of discretion. Claimant did not offer proof that an examination in the hearing could show that his left and right shoulder symptomology were related, and claimant's credibility concerning pain was irrelevant to the causation issue. Youngs v. Indus. Claim Appeals Office, 2013 COA 54 , 316 P.3d 50.   ALJ vested with wide discretion in conduct of evidentiary proceedings. Therefore, the ALJ's refusal to impose sanctions would not be set aside absent a showing that the ALJ abused his or her discretion. Kilpatrick v. Indus. Claim Appeals Office, 2015 COA 30 , 356 P.3d 1008.   Division has the authority to grant the parties to a medical utilization review proceeding an extension of time for good cause shown. Donn v. Indus. Claim Appeals Office, 865 P.2d 873 (Colo. App. 1993).   The power to grant reasonable extensions of time cannot overcome the jurisdictional time limitation on filing a notice of appeal of a medical utilization review order, pursuant to § 8-43-501 . Cramer v. Indus. Claim Appeals Office, 885 P.2d 318 (Colo. App. 1994).   ALJ's imposition of discovery sanctions reasonable upon a finding of a willful discovery violation when ALJ explicitly found that employer had not fully complied with the order compelling discovery. When the order is read in conjunction with: (1) The presumption accorded by department of labor & employment rule VIII(E)(7); (2) employer's failure to timely respond to the original discovery request; (3) its failure to timely comply with both the order compelling discovery and the order for discovery entered at the prehearing conference; and (4) its failure to respond to the motions to compel and for sanctions, the ALJ clearly found the violation was willful. Shafer Commercial Seating, Inc. v. Indus. Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003).   Employer did not substantially comply with the order to compel when it supplied the requested information only two or three days beyond the last imposed deadline without a showing that its belated production of the information was the result of mistake, lack of knowledge, or some other basis that would explain the failure to comply with the prior orders and negate the determination of deliberate intent. Shafer Commercial Seating, Inc. v. Indus. Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003).   III. EVIDENCE.   Annotator's note. Cases included in the annotations to this section which refer to the industrial commission were decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission and transferred its powers, duties, and functions to the industrial claim appeals panel.   The rules of evidence are generally the same in workmen's compensation cases as they are in civil suits. Watson v. Merritt, 149 Colo. 562 , 369 P.2d 989 (1962).   For the general assembly did not authorize the adoption of rules of evidence which courts themselves are without authority to adopt. Puncec v. City & County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970).   Due process and fundamental rights may not be disregarded. Although the rules of evidence may be somewhat more relaxed in an administrative proceeding than in a court of law, they cannot be so relaxed that due process of law and fundamental rights are disregarded. Puncec v. City & County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970).   Thus, in a compensation hearing cross-examination is a fundamental right, and not a mere privilege. Although its scope may be restricted, within the sound discretion of the court, it cannot be denied. And where the claimant does not request an opportunity to inspect the hospital records before the director or seek to cross-examine on them, the referee's failure to advise claimant of her right of cross-examination is improper, as is his failure to offer her an opportunity to inspect the records before using them against her. Puncec v. City & County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970).   Due process requires that a hearing officer either read or hear the evidence. Therefore a hearing officer may read and rely on the transcript of evidence presented before another hearing officer and need not grant a de novo hearing. Walton v. Indus. Comm'n, 738 P.2d 66 (Colo. App. 1987).   Hearing officer did not deprive employer and insurer of due process in denying their request to depose experts in different city even though, as a result, experts did not testify since deposition should have been taken in advance and employer and insurer were advised 60 days in advance of hearing date that all evidence was to be presented at that time. IPMC Transp. v. Indus. Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988).   Use of video teleconferencing technology to hear testimony from a remote location in evidentiary hearing did not violate claimant's due process and equal protection rights. Kroupa v. Indus. Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002).   Although hearing officer had discretion to grant petitioner's request in conduct of evidentiary proceeding upon a showing of good cause, such cause must be balanced against competing interests of other parties. IPMC Transp. v. Indus. Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988).   Rule against hearsay evidence may not properly be disregarded in proceedings under the workmen's compensation act. Olson-Hall v. Indus. Comm'n, 71 Colo. 228 , 205 P. 527 (1922); Armour & Co. v. Indus. Comm'n, 78 Colo. 569 , 243 P. 546 (1926); New Jersey Fid. & Plate Glass Ins. Co. v. Richey, 85 Colo. 376 , 275 P. 937 (1929); H.C. Lallier Const. & Eng'r Co. v. Indus. Comm'n, 91 Colo. 593 , 17 P.2d 532 (1932).   Parties are expected to introduce all their evidence at the appointed hearing and on that evidence, so introduced, a decision is made. Frank v. Indus. Comm'n, 96 Colo. 364 , 43 P.2d 158 (1935).   Burden of proof. It is elementary in compensation cases, as in other actions, that the burden of proof is upon the party asserting the claim and it is the duty of the claimant to show that the death or injury of the employee was the proximate result of an accident arising out of and in the course of his employment. Olson-Hall v. Indus. Comm'n, 71 Colo. 228 , 205 P. 527 (1922).   Where all the evidence supports the claim, because no evidence has been introduced to the contrary and no impeachment has taken place, the conclusion necessarily drawn by the law from the evidence must be enforced. Frank v. Indus. Comm'n, 96 Colo. 364 , 43 P.2d 158 (1935).   Hearing officer did not err in taking additional evidence which might have affected the outcome of a claim for benefits during an additional hearing conducted upon remand. Potomac Ins. Co. v. Indus. Comm'n, 744 P.2d 765 (Colo. App. 1987).   It is always proper for a claimant to testify as to his general health and feeling immediately preceding and succeeding an accident, to the end that comparison may be made and the extent of the injury evaluated. Montgomery Ward & Co. v. Indus. Comm'n, 128 Colo. 465 , 263 P.2d 817 (1953); Indus. Comm'n v. Newton Lumber & Mfg. Co., 135 Colo. 594 , 314 P.2d 297 (1957).   Statements of a deceased employee as to his bodily or mental feelings are admissible in evidence. Olson-Hall v. Indus. Comm'n, 71 Colo. 228 , 205 P. 527 (1922).   However, statements of a deceased employee as to the cause of his illness are not admissible, if not within the res gestae rule. Olson-Hall v. Indus. Comm'n, 71 Colo. 228 , 205 P. 527 (1922).   Admissions against interest justify the finder of the facts in considering as established the facts admitted. In the absence of opposing evidence their prima facie character remains undisturbed and intact. Watson v. Merritt, 149 Colo. 562 , 369 P.2d 989 (1962).   Probative value of employer's declaration against interest. The report of an accident by an employer stating that a claimant strained or pulled his heart muscle when attempting to lift a transmission into an automobile is a declaration against the interest of the employer having probative value, the weight of which is for the fact-finder to determine. Indus. Comm'n v. Johnson Pontiac, Inc., 140 Colo. 160 , 344 P.2d 186 (1959).   The written report of a doctor acting as a witness for a claimant may be considered when filed and made part of the record. J.W. Metz Lumber Co. v. Taylor, 134 Colo. 249 , 302 P.2d 521 (1956).   Consideration of testimony of doctor. The doctor who makes out a death certificate certifies as to the correctness of its contents at the time he makes it out, and where the doctor who makes out the certificate in the first instance seeks to explain away the legal effect of what he certifies, the fact-finder is justified in considering that circumstance carefully, Elleman v. Indus. Comm'n, 100 Colo. 120 , 66 P.2d 323 (1937).   Opinion evidence of physician is competent in workmen's compensation cases. Card Iron Works Co. v. Radovich, 94 Colo. 426 , 30 P.2d 1108 (1934).   Thus, question based on death certificate held not to be error. It is not prejudicial error to ask a medical expert whether death was the result of an accident based upon his examination of the death certificate alone. It is reasonable that such an expert can make certain deductions from the contents of a death certificate, and in such a case it is at least corroborative testimony. Elleman v. Indus. Comm'n, 100 Colo. 120 , 66 P.2d 323 (1937).   Employer's report of accident, its conduct relative thereto, and report of mine inspector are proper evidence in a workmen's compensation case involving a coal mining accident. Empire Zinc Co. v. Indus. Comm'n, 94 Colo. 98 , 28 P.2d 337 (1933).   Furthermore, hospital records may be received as evidence. The general assembly authorized the director to receive as evidence, and use as proof of any fact in dispute, hospital records of an injured employee. Puncec v. City & County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970).   When claimant refused to sign release of psychiatric records, the ALJ properly imposed sanctions. The judge agreed to review the records in camera to determine which, if any, should be released to respondents, but the claimant argued that the judge should meet in camera with her psychiatrist to identify areas that would not be disclosed. Sheid v. Hewlett Packard, 826 P.2d 396 (Colo. App. 1991).   The orders of a prehearing ALJ that relate to prehearing conferences are not final for purposes of appeal. Indus. Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998).   However, the orders of a prehearing ALJ approving a settlement are final for purposes of appeal. Indus. Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo. 1998).   Additional hearings. If a party seeks an additional hearing after the apparent completion of the contemplated hearing process, the commission may deny a further hearing unless there is presented a sufficient showing in justification for an additional hearing. Raffaelo v. Indus. Comm'n, 670 P.2d 805 (Colo. App. 1983).   The industrial commission erred in refusing to set aside an order of a referee denying claimant's request for an additional hearing to present further medical evidence where there was a stipulation for further evaluation of claimant, it was undisputed that the evaluation was completed, and opposing counsel acceded to the desirability of further hearing. Raffaelo v. Indus. Comm'n, 670 P.2d 805 (Colo. App. 1983).