IN THE MATTER OF THE CLAIM OF DELEITH LAYMAN, Claimant, v. ADAMS COUNTY SCHOOL DISTRICT 27J, Employer, and SELF INSURED, Insurer, Respondent.

W.C. No. 4-649-596.Industrial Claim Appeals Office.
June 24, 2010.

FINAL ORDER
The claimant seeks review of an order of the Director of the Division of Workers’ Compensation dated February 24, 2010 that granted the respondent’s Motion to Confirm Order to Show Cause, which had the effect of closing the claim. We affirm.

On May 9, 2005, the claimant filed a claim for workers’ compensation and on May 12, 2005, the respondent filed a Notice of Contest. The claimant filed an application for hearing on the issue of compensability in 2009. The application for hearing was vacated by order of ALJ Broniak on May 12, 2009 because of the claimant’s failure to answer interrogatories.

The respondent filed a Motion to Close for Failure to Prosecute on July 30, 2009. An Order to Show Cause was issued on August 20, 2009, which ordered the claimant to show good cause why the claim should remain open. The claimant responded by saying that an application had been filed and a hearing was set for November 13, 2009. In an order dated October 5, 2009, the Director issued an Extension of Time to Show Cause, which provided the claim would be automatically closed in 60 days unless the claimant actually attended the hearing or otherwise resolved the issue of closure.

The hearing scheduled for November 13, 2009 was vacated by ALJ Cannici on November 12, 2009 for the claimant’s failure to timely answer discovery. The respondent filed a Motion to Confirm Order to Show Cause based on its contention that because the matter did not proceed to hearing within 60 days of the Director’s Order dated October 5, 2009 the claim was closed. The Director entered his order of February 24, 2010

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granting the respondent’s Motion to Confirm Order to Show cause. The claimant brings this appeal of the Director’s February 24, 2010 order.

On appeal, the claimant contends the Director erred in dismissing “ex parte” the claim due to an alleged failure to prosecute. We are not persuaded to interfere with the Director’s order.

Section 8-43-207(1)(n), C.R.S., authorizes the Director to dismiss a claim where there has been no activity for a period of at least six months. W.C. Rule of Procedure 7-1 (C), 7 Code Colo. Reg. 1101-3 (2009) provides that where no activity in furtherance of prosecution has occurred in a claim for a period of at least 6 months, a party may request the claim be closed. Rule 7-1(C) further provides that following receipt of a request to close a claim, the Director may issue the order to show cause why the claim should not be closed. Rule 7-1(C), also provides that if a response is timely received, the Director will determine whether the claim should remain open.

Because the Director’s authority is discretionary, we may not interfere with the Director’s order unless an abuse is shown Martinez v. Qwest Communications
W.C. No. 4-741-525 (April 26, 2010); Milner v. Wal-Mart, W. C. No. 4-567-972 (June 17, 2005). An abuse exists if the Director’s order is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095 (Colo. 1985).

It appears undisputed that the claimant filed a claim for compensation on May 5, 2005 contending she was injured while driving a school bus on May 3, 2005. The respondent filed a Notice of Contest on May 12, 2005. The Director issued his order here under appeal, confirming a previous order, which provided that the claim would automatically be closed unless the claimant set her claim for hearing and attend the hearing on February 24, 2010. The initial compensability of the claim had been at issue for almost five years by the time the Director entered the order closing the case because of failure to prosecute. The Director’s order determined that the delay was the result of the claimant’s failure to pursue benefits for approximately 4 years when an Application for Hearing was filed. The Director also noted that scheduled hearings were vacated because of the claimant’s failure to answer discovery.

The claimant does not contest that scheduled hearings were vacated because of her failure to respond to interrogatories. Instead, the claimant maintains that this failure did not constitute a willful ploy on her part to hinder the prosecution of the case. The claimant argues that there was not evidence in the record before the Director on whether the claimant had good reasons why she failed to respond to discovery. The claimant contends she was denied due process because she was not afforded notice or the

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opportunity to be heard on the circumstances that caused her hearings to be cancelled. The claimant contends that an ex parte procedure was utilized to deprive her of her hearing rights.

The Director’s order was not issued in an ex parte
proceeding. A proceeding is said to be ex parte when it is taken or granted without notice to, or contestation by, any person adversely interested. Black’s Law Dictionary
517(5th ed. 1979). In contrast, here the claimant not only was notified of the respondent’s Motion to Confirm Order to Show Cause dated February 5, 2010 but responded to that motion. The claimant’s response was received on February 10, 2010 by the Division. The Director’s order under appeal here is dated February 24, 2010.

We also note that there is no contention by the claimant that she was not given an opportunity to respond to motions filed by the respondent to strike the scheduled hearings. We do not read the claimant’s brief, nor do we see anything in the record, to suggest that orders entered by ALJ Broniak on May 12, 2009 and ALJ Cannici on November 12, 2009, striking hearings for claimant’s failure to timely answer discovery, were entered without the claimant being afforded the opportunity to respond. It is presumed the proceedings were regularly and fairly conducted unless the contrary appears from the record. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo. App. 1005).

A party’s right to procedural due process is met if the party is provided with notice and an opportunity to be heard Pub. Utils. Comm’n v. Colo. Motorway, Inc., 165 Colo. 1, 10, 437 P.2d 44, 48 (1968). The essence of procedural due process is fundamental fairness. City County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). In our opinion, the claimant was afforded notice and an opportunity to be heard. Consequently, we are not persuaded that the claimant was deprived of due process of law.

Nor are we persuaded that the Director abused his discretion in closing the claim. To the contrary, the record supports the Director’s finding that the claimant failed to establish good cause for failing to prosecute her claim. Here the claimant delayed for years in pursuing her claim and then hearings were stricken because of her failure to comply with discovery requests. The Director, after reviewing a motion of the respondent to close the claim, had given the claimant an Extension of Time to Show Cause. In his October 5, 2009 Extension of Time to Show Cause the Director ordered that the claim would be automatically closed unless the claimant showed good cause for keeping the claim open, by setting a hearing date and attending the hearing, stating specifically what action was being taken to prosecute the claim or otherwise resolving the issue of closure with the Respondent within 60 days of the order. The claimant did not comply with this order.

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The Director in his February 24, 2010 order, here under appeal, determined that under the terms of the October 5, 2009 Extension of Time to Show Cause, the claim closed because the claimant failed to take any action to further prosecute the claim within 60 days. The claim did not proceed to hearing because the claimant had again failed to comply with discovery requests. Therefore, we cannot say the Director abused his discretion in closing the claim for failing to prosecute the claim. Section 8-43-301(8); see Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) (abuse of discretion standard is order beyond the bounds of reason, as where it is unsupported by the law or the evidence).

IT IS THEREFORE ORDERED that the Director’s order dated February 24, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

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DELEITH LAYMAN, BOONE, CO, (Claimant).

ADAMS COUNTY SCHOOL DISTRICT 27J, BRIGHTON, CO, (Employer).

LAW OFFICES OF RICHARD K. BLUNDELL, Attn: RICHARD K. BLUNDELL, ESQ., GREELEY, CO, (For Claimant).

RITSEMA LYON, PC, Attn: T. PAUL KRUGER, II, ESQ., DENVER, CO, (For Respondents).

TRISTAR RISK MANAGEMENT, Attn: MAGGIE OROSCO, DENVER, CO, (Other Party).

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