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TCL > August 2001 Issue > Colorado Division of Administrative Hearings Now Publishes Chief Judge’s Directives

The Colorado Lawyer
August 2001
Vol. 30, No. 8 [Page  53]

© 2001 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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Features

Colorado Division of Administrative Hearings Now Publishes Chief Judge’s Directives

The Colorado Division of Administrative Hearings ("Division") is Colorado’s central panel of administrative law judges ("ALJs"). The Division provides administrative adjudication services to more than twenty-five different state agencies. The Division’s ALJs hear and decide cases involving workers’ compensation, professional and occupational licenses, public benefits and Medicaid, state government personnel disputes, education of disabled students, dismissal of tenured teachers, campaign finance laws, highway signs and highway access, lottery, bingo, raffles, and many other subject matters.

Starting in 2001, the Division’s Chief Judge has issued eleven Chief Judge’s Directives ("CJDs"). The purpose of these CJDs is to provide guidance to attorneys, parties, agencies, and the public about how to conduct their business with the Division. The CJDs cover such subjects as filing procedures, how to direct inquiries to the Division, how ALJs are assigned in certain types of cases, and how certain types of cases are scheduled or continued. The eleven CJDs already issued are published here to give readers a sampling of such subjects. Additional CJDs will be published on a space-available basis in the "Court Business" section of the journal (just as Chief Justice Directives from the Colorado Supreme Court are published). Please watch for these. The Division’s CJDs also can be accessed online at: http://www.state.co.us/gov_dir/gss/DOAH/cjdindex.htm.

 

Index of Chief Judge’s Directives

  1. Procedures for Presenting Evidence and Position Statements in Workers’ Compensation Hearings (posted: March 1, 2001)
  2. Criteria for Determining "Good Cause" to Continue Workers’ Compensation Hearings (posted: March 1, 2001)
  3. Setting Hearings Outside of the Time Limits of CRS § 8-43-209 in Workers’ Compensation Cases (posted: March 1, 2001)
  4. Referral of Proposed Orders in Workers’ Compensation Cases (posted: March 1, 2001)
  5. Motions Practice in Workers’ Compensation Hearings (posted: March 1, 2001)
  6. Assignment of Judges in Regulatory Agency, Department of Education, Secretary of State, Day Care Licensing, Central Registry and Other Complex Cases (posted: March 1, 2001)
  7. Inquiries to the Division of Administrative Hearings Regarding Specific Cases (posted: March 1, 2001)
  8. Testimony of Physicians and Other Expert Witnesses in Workers’ Compensation Cases: (posted: March 1, 2001)
  9. Filing of Pleadings, Documents and Other Communications (posted: April 2, 2001)
  10. Continuation of Cases on Trailing Dockets in Workers’ Compensation Cases (posted: May 14, 2001)
  11. Motions and Orders Submitted by Facsimile in Workers’ Compensation Cases (posted: May 14, 2001)

Chief Judge’s Directives

No. 1

Subject:

Procedures for Presenting Evidence and Position

Statements in Workers’ Compensation Hearings

(a) At the hearing the parties may submit for the record medical and hospital records, physicians’ reports, vocational reports, and records of the employer as evidence without formal identification [section 8-43-210, C.R.S.]. These documents must be submitted to the opposing party (or attorney, if there is one) at least 20 days prior to hearing (Division of Workers’ Compensation Rule VIII, I, 1).

To avoid confusion with other exhibits which may be offered into evidence at the hearing, the following instructions apply to identifying the documents described above and other exhibits which the parties want the judge to consider:

i. Claimants’ submissions of the documents described above must be identified by a separate number for each document. Any other exhibits offered at the hearing will be numbered consecutively.

ii. Respondents’ submissions of the documents described above must be identified by a separate letter for each document. Any other exhibits offered at the hearing will be lettered consecutively.

iii. The Division of Administrative Hearings encourages parties to tab and paginate all of the submissions of documents presented under section 8-43-210, C.R.S. and Division of Workers’ Compensation Rule VIII, I, 1, and to two-hole punch the top of the submission packet.

(b) Position statements or trial briefs may be submitted at the commencement of the hearing. The judge has the discretion to allow a verbal or written response to a position statement or trial brief. The judge has the discretion to allow the submission of post-hearing position statements.

Posted: March 1, 2001

 

No. 2

Subject:

Criteria for Determining "Good Cause" to

Continue Workers’ Compensation Hearings

Good cause to continue a workers’ compensation hearing may include, but is not limited to: death or incapacitation of a party or an attorney for a party; failure of a witness to appear when the witness is under a valid subpoena; a court order staying proceedings or otherwise necessitating a continuance; entry or substitution of an attorney for a party a reasonable time prior to the hearing, if the entry or substitution reasonably requires a postponement of the hearing; a change in the parties or pleadings sufficiently significant to require a postponement; a showing that more time is clearly necessary to complete authorized discovery or other mandatory preparation for the hearing; or agreement of the parties to a settlement of the case which has been or likely will be approved by the final decision maker.

Good cause normally will not include the following: unavailability of counsel because of engagement in another judicial or administrative proceeding, unless the other proceeding was involuntarily set subsequent to the setting in the present case; unavailability of a necessary witness who is not under a valid subpoena; or failure of an attorney timely to prepare for the hearing.

Posted: March 1, 2001

 

No. 3

Subject:

Setting Hearings Outside of the Time Limits of

CRS § 8-43-209 in Workers’ Compensation Cases

In limited circumstances it may be necessary to set or continue a hearing outside of the time limits of section 8-43-209, C.R.S. Hearings will not be set or continued on this basis except on motion showing good cause and an order of a judge.

Stipulated motions for continuances or particular setting dates will not automatically be granted. All such motions, including stipulated motions, must demonstrate good cause for the relief requested.

Guidelines for a showing of good cause are set forth in Chief Judge Directive No. 2.

Posted: March 1, 2001

 

No. 4

Subject:

Referral of Proposed Orders in Workers’ Compensation Cases

(a) A judge may exercise discretion to request or receive proposed orders or position statements from the parties in a workers’ compensation case. The following options exist for obtaining proposed orders or position statements. These options are not exclusive, and a judge may use other mechanisms appropriate to the case.

i. Ruling from the bench and referring preparation of a proposed order to prevailing counsel. In making the referral the judge should articulate findings and conclusions, in as much detail as the judge considers appropriate, resolving conflicts in the evidence and deciding all pertinent issues. Also, the judge should provide guidance on boilerplate language, pertinent case and statutory law, and when and how to submit the proposed order. The judge’s mastery of the law applicable to the facts of the case at the conclusion of the hearing is a necessary prerequisite to ruling from the bench. A judge may modify the fact findings and legal conclusions articulated at the conclusion of the hearing in the written order. Proposed orders are subject to rewriting by the judge to more accurately find facts and more accurately make legal conclusions with supporting case and statutory authority.

ii. Issuing a letter, minute order or e-mail to all attorneys, detailing specific findings and legal conclusions, and requesting the prevailing attorney to submit a proposed order. The same guidelines for bench rulings apply.

iii. Requesting post-hearing position statements with guidance from the judge on the facts, issues and law to be addressed, as appropriate.

iv. Conducting a conference call between the judge and all the attorneys or unrepresented parties to articulate findings of fact and conclusions of law, and to refer preparation of a proposed order to the prevailing party. The same guidelines for bench rulings apply. The call will be tape-recorded to prevent misunderstandings.

v. Taking the case under advisement and the judge preparing specific findings.

(b) Regardless of how the judge proceeds in accepting proposed orders or position statements, the following principles apply:

i. Ultimately, the written order of the judge controls, and Division of Administrative Hearings’ performance standards for written orders apply. All orders must be properly typewritten and formatted.

ii. The judge should direct the parties preparing proposed orders or position statements to send a copy to opposing counsel (or unrepresented parties) by the same method (mail, e-mail, fax) it is delivered to the judge. In addition, the judge should specify a time limit for any comments by opposing parties.

(c) If proposed orders or position statements are e-mailed, they should be e-mailed to the Division of Administrative Hearings general e-mail address, adminhearings@state. co.us.

Posted: March 1, 2001

 

No. 5

Subject:

Motions Practice in Workers’ Compensation Hearings

(a) Parties and counsel should pay close attention to Division of Workers’ Compensation Rule VIII, L governing the location of filing of motions. Doing so will expedite the determination of your motion and avoid confusion in coordinating with the prehearing judges in the Division of Workers’ Compensation.

i. Motions should not be filed with the Division of Administrative Hearings unless a current application for a hearing is on file with the Division of Administrative Hearings and a hearing has been confirmed. If an application was filed but is withdrawn, motions should no longer be filed with the Division of Administrative Hearings.

ii. Motions should not be filed with the Division of Administrative Hearings if a prehearing conference is set at the Division of Workers’ Compensation.

iii. Motions for cases set on the western slope should be filed in Grand Junction. All other motions should be filed in Denver.

(b) Prior to filing any motion the parties are encouraged to confer with each other in good faith regarding the subject matter of the motion and attempt to reach agreement regarding the subject of the motion. If the motion still must be filed, the party filing the motion should describe in the motion what attempts were made to resolve the issue prior to filing the motion.

(c) If a motion is uncontested, by agreement of the parties, that fact should be conspicuously noted in the caption of the motion.

Posted: March 1, 2001

 

No. 6

Subject:

Assignment of Judges in Regulatory Agency, Department of

Education, Secretary of State, Day Care Licensing, Central

Registry and Other Complex Cases

(a) Cases governed by the Rules of Procedure of the Division of Administrative Hearings will be assigned to a specific judge prior to the setting conference. The judge initially assigned will continue to be assigned to the case through the hearing on the merits, including all motions and other prehearing matters. In some cases it may be necessary to reassign a case because of unavailability of the assigned judge, or due to unusual docketing, workload or similar considerations. Absent special circumstances, however, it is the policy of the Division of Administrative Hearings that the same judge will be assigned to a complex case from filing to conclusion.

(b) In cases involving the summary suspension of a license, the judge who conducts the informal prehearing conference will also be assigned to prehearing matters and to hear the case on the merits.

(c) Cases involving the Department of Regulatory Agencies, the Department of Education, the Secretary of State, and day care and Central Registry cases in the Department of Human Services are examples of cases covered by these rules and this directive. Workers’ Compensation, Human Services benefits cases and most cases for the Department of Health Care Policy and Financing are not subject to these rules or this directive.

Posted: March 1, 2001

 

No. 7

Subject:

Inquiries to the Division of Administrative

Hearings Regarding Specific Cases

Parties or counsel should not attempt to contact a judge directly regarding a specific case. To obtain information about a case, calls should be placed to the clerk’s office at 303-894-2500.

The clerk’s office can answer questions about what case number has been assigned to a matter, hearing dates, receipt of filings, and whether an order or decision has been issued. The clerk’s office will transfer calls to a legal assistant when the call involves questions about procedures or procedural rules, or if a party wishes to request a conference or other communication with a judge.

Posted: March 1, 2001

 

No. 8

Subject:

Testimony of Physicians and Other Expert Witnesses in

Workers’ Compensation Cases

Efficient use of the time of physicians and other expert witnesses in workers’ compensation cases can be enhanced by allowing experts to be "on-call" (rather than present in the hearing room until their testimony is needed), and by the use of telephone testimony.

(a) Judges have the authority to allow witnesses to be on-call, and the ability to manage that process to result in the most efficient use of hearing time for all participants. When parties have a witness on call they should advise the judge of that fact at the start of the hearing, and inform the judge of any scheduling considerations, such as the amount of lead time needed for the witness to travel to the hearing.

(b) Telephone testimony is authorized by the Colorado Rules of Civil Procedure, which are applicable to workers’ compensation cases. Whenever possible the Division of Administrative Hearings will make available facilities which permit the experts testifying on both sides of the case to be included in the conference call, so that each can hear the other’s testimony.

Posted: March 1, 2001

 

No. 9

Subject:

Filing of Pleadings, Documents and Other Communications

(a) Pleadings, documents and other written communications regarding a case at the Division of Administrative Hearings must be addressed to the Clerk of the Division. Written communications should not be addressed to a specific judge or other staff member of the Division. The only exceptions to this directive are:

i. Confidential mediation statements, which must be addressed to the mediation judge;

ii. Complaints and comments about judges or staff, which must be addressed to the Division Director.

(b) The communications covered by this directive include pleadings, motions, briefs, letters, requests, inquiries and other contacts, and any documents comprising part of the official record of the case.

Posted: April 2, 2001

 

No. 10

 

Subject:

Continuation of Cases on Trailing Dockets in

Workers’ Compensation Cases

Judges must exercise discretion in deciding what cases to continue when more cases than time allows are ready to proceed to hearing on a trailing docket. In exercising that discretion a judge will consider the following factors, among others:

  1. Whether the case has been continued previously.
  2. Whether any parties or witnesses have traveled from out-of-state or a great distance in-state to attend the hearing.
  3. Whether expert witnesses are in attendance who are being compensated for their time by the parties.
  4. The nature of the issues at hearing (for example, whether compensability or a need for medical treatment are at issue).
  5. The relative hearing time estimates of the cases set for hearing.

    The date of filing of the application for hearing.

Posted: May 14, 2001

 

No. 11

Subject:

Motions and Orders Submitted by Facsimile in

Workers’ Compensation Cases

The Division of Administrative Hearings receives many motions and orders by facsimile in workers’ compensation cases. Because of the volume of motions transmitted by facsimile, and because motions and orders submitted by facsimile do not include proposed orders and envelopes, parties may not receive conformed copies of these orders in an efficient manner.

This directive establishes a procedure which will facilitate the ability of the Division of Administrative Hearings ("Division") to provide timely copies of orders when the original proposed order is submitted by facsimile.

  1. Motions should not be filed by facsimile unless the hearing date is less than 15 days from the date of the facsimile transmission. Motions filed by facsimile 15 or more days prior to hearing will not be considered.
  2. Responses to motions may be filed by facsimile at any time.
  3. Motions and responses to motions filed by facsimile must be served on opposing parties by facsimile or personal delivery on the date of filing.
  4. When a proposed order is filed by facsimile transmission the Division clerk will return the signed order by facsimile to the party who submitted the proposed order. This party will be instructed to serve copies of the order on all other parties.
  5. When a motion, response or proposed order is filed by facsimile, copies of the motion, response or proposed order and envelopes should not be filed with the Division clerk, and will not be returned if filed.

Posted: May 14, 2001

© 2001 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2001.


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