IN RE ARAGON, W.C. No. 4-309-618 (6/4/99)


IN THE MATTER OF THE CLAIM OF MICHAEL ARAGON, Claimant, v. WESTERN CONCRETE INC., Employer, and TRAVELERS CASUALTY SURETY CO., Insurer, Respondents.

W.C. No. 4-309-618 and 4-309-620Industrial Claim Appeals Office.
June 4, 1999.

FINAL ORDER

The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which, in effect, denied and dismissed his claims for benefits in these consolidated workers’ compensation cases. The claimant argues that the ALJ’s findings are insufficient to warrant dismissal of the claims based on failure to prosecute. We affirm.

The ALJ’s findings, contained in his order dated January 21, 1999, may be summarized as follows. The claimant failed to appear for two hearings at which his right to benefits was to be adjudicated. Approximately six months after each of these hearings the respondents filed motions to dismiss for failure to prosecute. The ALJ then issued show cause orders requiring the claimant to establish reasons for failure to litigate the claims. In September 1998 the claimant again applied for a hearing, and notice of the hearing was sent to his correct address. However, the claimant failed to appear for the hearing scheduled on December 8, 1998.

On December 9, 1998, the ALJ issued a third order to show cause requiring the claimant to establish reasons why the claims should not be dismissed for lack of prosecution and evidence. Upon consideration of the claimant’s response, the ALJ determined that the claimant received timely notice of the December 8 hearing, but failed to appear. The ALJ further found that the inability of claimant’s counsel to contact the claimant by telephone did not provide an excuse for the claimant’s failure to appear. Consequently, on January 21 the ALJ ruled that the claimant is precluded from seeking further hearings on these claims for benefits.

The claimant has not filed a brief in support of his appeal. The petition to review contains only general allegations of error, contending that the findings are insufficient to support dismissal of the claims. We disagree.

Section 8-43-207(1)(n), C.R.S. 1998, provides that an ALJ may “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.” Because dismissal for failure to prosecute is discretionary with the ALJ, we may not interfere with his order unless an abuse is shown. An abuse of discretion exists if the ALJ’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).

Here, the claimant does not challenge the ALJ’s findings of fact, and the findings are sufficient to support dismissal for failure to prosecute. The ALJ found, in effect, that the claimant has consistently failed to appear for hearings at which his right to benefits was to be adjudicated. At the time of the last hearing the claimant had adequate notice, but nevertheless failed to appear for the third time. A plausible conclusion to be drawn from this evidence is that the claimant is deliberately obstructing the adjudicative process, and frustrating the respondents’ attempts to bring the case to a conclusion. Under such circumstances we cannot say the ALJ abused his discretion by precluding the claimant from further efforts to establish the claims.

The claimant also expressed disagreement with the ALJ’s order of February 8, 1999. However, that order merely determined that the January 21 order was intended as a final order, and therefore, there was no need for specific findings of fact and conclusions of law. We perceive no error in this determination.

IT IS THEREFORE ORDERED that the ALJ’s orders dated January 21, 1999, and February 8, 1999, are affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

___________________________________ David Cain
___________________________________ Bill Whitacre

NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.

Copies of this decision were mailed June 4, 1999 to the following parties:

Michael Aragon, 1321 7th St., Greeley CO 80631

Western Concrete Inc., 2000 Quebec, Denver CO 80231

Travelers Casualty Surety Co., PO Box 173762, Denver CO 80217-3762

Richard K. Blundell, Esq., David T. McCall, Esq., 1024 8th St., Greeley CO 80631 (For Claimant)

Lynda S. Newbold, Esq., 1515 Arapahoe St., Tower 3, #600, Denver CO 80202 (For Respondents)

By: A. Pendroy