W.C. No. 4-559-615.Industrial Claim Appeals Office.
January 13, 2010.

The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated September 30, 2009, that denied and dismissed the claimant’s claim for compensation and medical benefits other than those heretofore admitted and the claimant’s petition to reopen for lack of prosecution and lack of evidence. We affirm.

This matter has been before the Panel previously. We note the following procedural status of the case from the Panel’s previous order, which appears to be undisputed. The claimant sustained a compensable injury on October 19, 2002, and was placed at maximum medical improvement on February 13, 2003. On March 31, 2003, the respondents filed a final admission of liability admitting for permanent partial disability benefits based upon an impairment rating of nine percent of the whole person. The claimant did not object to the final admission and the claim was closed. The claimant subsequently filed an application for hearing dated July 17, 2007, endorsing the issues of compensability, medical benefits, reopening, and permanent total disability. A hearing was held before Administrative Law Judge Friend, who concluded that the claimant had failed to carry his burden of showing a worsened condition.

The claimant then filed a subsequent petition to reopen on October 14, 2008, again seeking reopening of his claim based upon a worsened condition. ALJ Krumreich concluded that the doctrine of issue preclusion applied and precluded the claimant from relitigating the question of whether his condition had worsened. In an order dated April 2, 2009, the Panel reversed ALJ Krumreich’s order granting summary judgment. The matter was remanded to be reset for hearing on the claimant’s application.

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The matter was set to be heard on September 3, 2009. The claimant failed to appear. The claimant, after the September 3, 2009 hearing date, in a letter dated September 7, 2009 wrote to the Office of Administrative Courts. In the September 7, 2009 letter, the claimant asked for a new hearing date. In the September 7, 2009 letter, the claimant acknowledged that he was aware that the hearing had been set for September 3, 2009. The claimant attached documents to his September 7, 2009 letter indicating that he had been incarcerated.

The ALJ entered an order dated September 11, 2009 ordering the case dismissed for lack of prosecution unless the claimant showed good cause in writing within thirty days from the date of the order why it should not be dismissed. The claimant responded to the Order to Show Cause. In his response, the claimant stated that he did not appear at the September 3, 2009 hearing because he was in jail. The ALJ entered an order dated September 30, 2009, denying and dismissing the claimant’s petition to reopen and claim for compensation. The September 30, 2009 order is the subject of the present petition to review.

In the September 30, 2009 order, the ALJ determined that the claimant had failed to show good cause for his failure to appear at the September 3, 2009 hearing. Therefore, the ALJ denied and dismissed with prejudice for lack of prosecution and lack of evidence the claimant’s petition to reopen and his claim for compensation and medical benefits other than those heretofore admitted.

In the claimant’s petition to review received on October 14, 2009 by the Office of Administrative Courts, the claimant reiterated that he was incarcerated on the date of his scheduled hearing and therefore was unable to attend. We note that the claimant has made an additional filing dated October 26, 2009. In this filing, the claimant appears to argue that he was led to believe by the Office of Administrative Courts that the September 30, 2009 order was issued because his response had not been received. However, the ALJ’s September 30, 2009 order on its face clearly acknowledges that the claimant’s response had been received. The ALJ was not persuaded by the response. In any event, our review is restricted to the record before the ALJ, and the factual assertions made by the claimant in his additional filing dated October 26, 2009 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).

Section 8-43-207(1)(n) C.R.S. 2009 provides that an ALJ may dismiss all issues, except for resolved issues and benefits already received, “for failure to prosecute the case

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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. C D 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). We find no abuse of discretion in the ALJ’s determination that the claimant had failed to show good cause.

Under some factual circumstances, incarceration might establish “good cause” for failure to appear at a hearing. However, here there was no indication that the incarceration was sudden or unexpected such that it did not afford the claimant an opportunity to make alternative arrangements for the hearing. The claimant did not contend that he gave timely notice to the ALJ of the emergent circumstances. Further, the claimant did not demonstrate any effort to notify opposing counsel of his situation. There was no contention that the claimant made a good faith attempt to reschedule. See Mondragon v. Poudre Valley Hospital, W.C. No. 4-214-616 (November 29, 2004), affd, Mondragon v. Industrial Claim Appeals Office, No. 04CA2609 (Colo. App., Nov. 17, 2005) (not selected for publication) (once show cause order issues claimant bears burden of filing timely response which establishes good cause to prevent closure of claims).

The claimant does not allege that he failed to receive notice of the hearing or was otherwise prevented from requesting a continuance. The claimant, in his response to show cause did not indicate when he began his incarceration. Moreover, an “Inmate Personal Property Receipt” for the claimant that he attached to his letter dated September 7, 2009 indicates that the claimant was processed for incarceration on August 14, 2009. According to the record the September hearing in this matter was set in July 2009 and the notice of hearing was mailed to the parties on July 31, 2009. The ALJ could reasonably infer from the record that the claimant was not jailed at or near the time when the September hearing was set. The claimant’s response to the show cause order merely indicates that he was incarcerated. The limited information provided does not show the claimant acted in a reasonably prudent manner in failing to make arrangements for dealing with his workers’ compensation claim while he was incarcerated.

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In our view, the ALJ was free to conclude that the claimant’s failure to appear for the hearing was attributable to circumstances within his control. See Albertsons, Inc. v. Industrial Com’n of State of Colo. 735 P.2d 220 (Colo. App. 1987) (consideration in determining whether good cause exists in unemployment case is whether factors outside control of party prevented timely action). Further, even if the claimant could not participate in the hearing from jail, the claimant was aware of the hearing in advance. As noted above, the notice for the September 3, 2009 hearing bears a certificate of service of July 31, 2009. There is no indication that the claimant attempted to postpone the hearing, either by mail or through a representative. In addition, the claimant does not assert that he was wrongly imprisoned. These circumstances do not establish that the ALJ abused his discretion in findings that good cause had not been shown for the claimant’s failure to appear.

IT IS THEREFORE ORDERED that the ALJ’s order dated September 30, 2009 is affirmed.


______________________________ John D. Baird

______________________________ Thomas Schrant

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