W.C. No. 4-741-525.Industrial Claim Appeals Office.
April 26, 2010.
FINAL ORDER
The claimant seeks review of an order of the Director of the Division of Workers’ Compensation (Director) dated November 30, 2009, that granted the respondents’ Motion to Close. We affirm.
The respondents filed a Motion to Close on June 5, 2009. The Director entered an Order to Show Cause dated June 22, 2009. The claimant in a letter dated July 22, 2009 requested that her claim be kept open and noted she was gathering information. The Director in an order dated August 6, 2009 granted the claimant an extension of time to show cause. The Director’s August 6, 2009 order provided the claim would automatically be closed unless the claimant showed good cause for keeping the claim open, filed an Application for Hearing or otherwise resolved the issue of closure with the respondents within sixty days of the date of mailing of the order. The claimant sent a letter dated October 6, 2009 to the Director requesting that her case be kept open indicating that she was still gathering information. The Director in an order dated October 14, 2009 granted a second extension of time to show cause. The October 14, 2009 order indicated that the claim would be automatically closed unless the claimant showed good cause for keeping the claim open by applying for a hearing, stating specifically what action was being taken to prosecute the claim, or otherwise resolved the issue of closure with the respondents within 30 days of the date of mailing of the order. The claimant sent a letter to the Director dated November 13, 2009 requesting that her case be kept open and indicated she was still working on gathering data for her case.
The Director then issued the November 30, 2009 order that is under appeal here. The November 30, 2009 order noted that an Order to Show Cause, and two extensions of
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time to show cause, had been issued. The November 30 2009 order determined that no Application for Hearing or other showing of prosecution of the claim had been made by the claimant in response to any of the orders. The Director concluded that the claimant had failed to show good cause why the claim should not be closed. The Director granted the respondents’ Motion to Close subject to the reopening provisions as set forth in § 8-43-303, C.R.S.
On appeal, the claimant again requests that her case be kept open. The claimant contends that she disagrees with the impairment rating she received in July of 2008 following a Division-sponsored independent medical examination (DIME). The claimant states that she has scheduled a medical examination and intends to present facts at a hearing designed to overcome the opinion of the (DIME) physician. 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. Under Rule 7-1(C), if no response is mailed or delivered within 30 days of the date the order was mailed, the claim shall be closed automatically, subject to the reopening provisions of § 8-43-303, C.R.S. 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 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).
The claimant by her own admission has failed to take any positive action with the Division to challenge the opinion of the DIME physician entered on June 23, 2008. The original Show Cause Order was issued on June 22, 2009, almost a year after the DIME physician’s opinion was issued. The claimant does not dispute that she has failed to show the Director good cause for keeping the claim open by applying for hearing, stating specifically what action was being taken to prosecute the claim, or otherwise resolved the issue of closure with the respondents before the Director entered his November 30, 2009 order. Under these circumstances, the Director could reasonably infer that although the claimant was on notice that action was required to comply with his show cause order, but the claimant nevertheless failed to take appropriate action.
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Further, the claimant did not allege before the Director, as she now does on appeal, that she had scheduled a medical examination. To the contrary, the record supports the Director’s finding that the claimant failed to establish good cause for failing to prosecute her claim. Therefore, we cannot say the Director abused his discretion in closing the claim for failing to prosecute the claim through November 30, 2009. 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 November 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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BEVERLY J MARTINEZ, 375 S DEPEW ST., SUITE 104, LAKEWOOD, CO, (Claimant).
QWEST COMMUNICATIONS, DENVER, CO, (Employer).
SEDGWICK CMS, Attn: KATHLEEN M BEBEE, LEXINGTON, KY, (Insurer).
NATHAN, BREMER, DUMM MYERS, PC, Attn: MARK H. DUMM, ESQ., DENVER, CO, (For Respondents).
SEDGWICK CMS, Attn: KATHLEEN BEBEE, DENVER, CO, (Other Party).
DIVISION OF WORKERS’ COMPENSATION, Attn: BOB SUMMERS, ESQ., C/O: DIRECTOR, DENVER, CO, (Other Party 2).
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