Opinion
W.C. No. 4-777-944.
March 9, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated September 30, 2010, that dismissed claims for benefits and penalties, except as to benefits already admitted and paid, for lack of prosecution and lack of evidence. We affirm.
The claimant sustained an industrial injury on November 21, 2008. Dr. Wunder placed the claimant at maximum medical improvement and assigned eighteen percent whole person impairment. The respondents filed a Notice and Proposal for Independent Medical Examination. A Division-sponsored independent medical examination (DIME) was set with Dr. Lichtenberg. However, Dr. Wunder, after reviewing surveillance videos, issued a new impairment rating report revising his estimate of the claimant's impairment to zero percent of the whole person. The respondents cancelled the scheduled DIME and filed a Final Admission of Liability on September 8, 2009 in accordance with Dr. Wunder's new report.
The claimant filed a Notice of Proposal for Independent Medical Examination and a DIME was set with Dr. Mitchell. Dr. Mitchell issued a report concluding that the claimant was at MMI and had zero percent whole person impairment. On December 22, 2009, the insurer issued an Amended Final Admission of Liability in accordance with the report of Dr. Mitchell.
The claimant mailed an Application for Hearing on January 21, 2010 on numerous issues including overcoming the DIME, penalties and various benefits. The Application for Hearing was received by the Office of Administrative Courts (OAC) on January 25, 2010, more than thirty days after the December 22, 2009 Final Admission.
A hearing date was eventually set for August 6, 2010. A status conference was set for August 4, 2010. The claimant and counsel for the claimant failed to appear at the scheduled August 4, 2010 status conference and failed to appear at the scheduled August 6, 2010 hearing.
The ALJ issued a show cause order due to the claimant's failure to appear at the hearing. The Order to Show Cause struck the claimant's January 21, 2010 Application for Hearing and ordered the claimant to show good cause why the claims for compensation and penalties, other than those admitted, should not be dismissed for lack of prosecution and lack of evidence. The claimant filed a Verified Response to Order to Show Cause.
In ruling on the response to show cause, the ALJ found the statement of respondents' counsel made on the record at the scheduled hearing on August 6, 2010 to be credible and persuasive. The ALJ found unpersuasive the statements of the claimant's counsel that illness prevented his attendance at the hearing. The ALJ further found the statements of the claimant's counsel unpersuasive regarding his failure to attend the status conference. The ALJ found that the claimant, through his counsel of record, had failed to show good cause for his failure to attend the hearing and failed to show good cause as to why his claims should not be dismissed. The ALJ exercised his authority under § 8-43-207(1)(n), C.R.S., and dismissed all claims, except as to benefits already received for failure to prosecute the case.
The ALJ also found the claimant's claim for compensation and penalties was closed by the Amended Final Admission of December 22, 2009 as the claimant failed to timely file an Application for Hearing with the OAC within thirty days of the date of the Admission in accordance with § 8-43-203(2)(b)(II). C.R.S. Citing Rice v. Indus. Claim Appeals Office, 937 P.2d 893 (Colo. App. 1997) the ALJ determined that an application for hearing is not filed with OAC under § 8-43-203(2)(b)(II) until it is actually received by OAC. The ALJ found that OAC did not receive the claimant's January 21, 2010 Application for Hearing until January 25, 2010 more than thirty days after the date of the respondents' December 22, 2009 Final Admission. The ALJ found that the claim closed automatically by the December 22, 2009 Amended Final Admission under the provisions of § 8-43-203(2)(b)(II) and he lacked jurisdiction, absent a re-opening under § 8-43-303 C.R.S., to award the claimant any additional compensation or penalties.
The claimant appeals contending that the ALJ improperly closed the claim for failure to prosecute pursuant to § 8-43-207(1)(n). The claimant also contends that the ALJ improperly found the claim was closed for failure to timely file an Application for Hearing pursuant to § 8-43-203(2)(b)(II).
We initially note that the claimant has attached to his Brief in Support of Petition to Review an affidavit of Frank Zamora dated December 16, 2010 and an affidavit of James Chiu dated December 16, 2010. The order under appeal here is dated September 30, 2010. Our review is restricted to the record before the ALJ, and the factual assertions made in these additional filings may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo. App. 1995); Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo. App. 1995); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo. App. 1987). We also note that the claimant argues that the respondents impermissibly introduced data in the form of unauthenticated surveillance tapes that tainted the DIME procedure. However, our review is restricted to any errors committed by the ALJ in his order of September 30, 2010.
Section 8-43-207(1)(n) C.R.S. provides that an ALJ may dismiss all issues, except for resolved issues and benefits already received, "for failure to prosecute the case unless good cause is shown why such issues should not be dismissed." Section 8-43-207(1)(n) does not establish standards for determining "good cause" why a claim should not be dismissed for failure to prosecute.
The ALJ has wide discretion in the conduct of evidentiary proceedings, including the decision of whether to grant a continuance to take additional evidence or dismiss a claim based on the claimant's failure to prosecute. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo. App. 1988); Hafer v. CD Trucking, W. C No. 4-495-182 (November 15, 2001). We review the matter of issuing a show cause order under the abuse of discretion standard. See Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985) (abuse of discretion occurs if, under the totality of the circumstances, the ALJ's determination exceeds the bounds of reason); Handson v. Northwest Pipe Company, W.C. No. 4-559-615 (January 13, 2010). We find no abuse of discretion in the ALJ's determination that the claimant had failed to show good cause.
Following we set forth some of the ALJ's findings of fact relevant to the issue of whether the claimant had shown good cause why his claims should not be dismissed for failure to prosecute the case. On June 17, 2010 the OAC issued a Notice of Hearing for August 6, 2010 at 1:00 p.m. Also, on June 17, 2010 the OAC issued a Notice of Status Conference for August 4, 2010 at 1:00 p.m. There was no appearance for the claimant at the scheduled status conference. On August 5, 2010 counsel for the claimant contacted counsel for respondents and advised that he was seeking an extension of time for the hearing set for August 6, 2010. Counsel for the claimant represented to respondents' counsel that the basis for the request for an extension of time to commence the August 6, 2010 hearing was that he had an appellate brief that was due and was also scheduled to attend a bar association conference in Vail, Colorado on the day of the hearing. Respondents' counsel advised the claimant's counsel that he would not agree to an extension of time to commence the August 6, 2010 hearing.
On the morning of August 6, 2010 respondents' counsel received a telephone call from the claimant's counsel's paralegal advising that claimant's counsel was ill and not able to attend the hearing that afternoon. Respondents' counsel advised the paralegal that he would be appearing at the hearing and would advise the ALJ of the conversation of August 5, 2010 between himself and the claimant's counsel and would be asking the ALJ to dismiss the claims with prejudice. The claimant and claimant's counsel failed to appear at the August 6, 2010 hearing set for 1:00 p.m. The ALJ issued an Order to Show Cause.
The claimant, through counsel, filed a Verified Response to Order to Show Cause. In his response counsel for the claimant stated he suffers from a variety of health maladies and more recently has suffered from and continues to suffer from increasingly severe late night or mid-morning anxiety attacks on the eve of the hearings before ALJs of the OAC. Counsel for the claimant stated that on the night prior to the August 6, 2010 hearing he suffered from increasing anxiety and other health maladies. Claimant's counsel stated that he had three hearings set for August 6, 2010 and that the issues in two of the cases had resolved and that he mistakenly believed that all the hearings had been resolved. He stated that he therefore had not appeared at the status conference on August 4, 2010.
The ALJ found that the statements of the respondents' counsel were credible and persuasive. The ALJ was not persuaded by the statements of the claimant's counsel that illness prevented his attendance at the hearing of August 6, 2010. The ALJ further found unpersuasive the statements of the claimant's counsel for the failure of anyone to attend the status conference on August 4, 2010.
It is the sole province of the fact finder to weigh the evidence and resolve contradictions in the evidence. Pacesetter Corp. v. Collett, 33 P.3d 1230, 1234 (Colo. App. 2001). We are bound by the ALJ's factual determinations, even when the evidence is conflicting and would have supported a contrary result. Cary v. Chevron U.S.A., Inc., 867 P.2d 117, 119 (Colo. App. 1993).
Under the circumstances we cannot say that he abused his discretion in determining that the claimant had failed to show good cause. Because we conclude that the ALJ did not commit reversible error in dismissing all claims for benefits and penalties, except as to benefits already admitted for lack of prosecution it is unnecessary to address the remaining issue of whether the ALJ improperly found the claim was closed for failure to timely file an Application for Hearing pursuant to § 8-43-203(2)(b)(II).
IT IS THEREFORE ORDERED that the ALJ's order dated September 30, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Krikscium
____________________________________ Thomas Schrant
DANIEL J. MESA, SR., EVANS, CO, (Claimant).
JE DUNN CONSTRUCTION COMPANY, Attn: MATT OGLE, DENVER, CO, (Employer).
NEW HAMPSHIRE INS. CO., C/O: AIG DOMESTIC CLAIMS, INC., SHAWNEE MISSION, KS, (Insurer).
LAW OFFICE OF RICHARD K. BLUNDELL, Attn: RICHARD K. BLUNDELL, GREELEY, CO, (For Claimant).
CONDIT CSAJAGHY LLC, Attn: CHRISTOPHER CONDIT, DENVER, CO, (For Respondents).