W.C. No. 4-329-731Industrial Claim Appeals Office.
November 14, 2000
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claim for benefits was automatically closed for failure to prosecute. The claimant argues that an Entry of Appearance filed by counsel was sufficient to preclude closure of the claim. We set aside the ALJ’s order and remand for entry of a new order.
The pertinent facts are essentially undisputed. The claimant sustained an alleged injury in February 1997, and the respondent filed a notice of contest in March 1997. Initially, the claimant was represented by attorney Martinez, and two hearings were set in 1997. However, neither of these hearings was held, and attorney Martinez moved to withdraw. The motion to withdraw was granted on February 10, 1998. In May 1998, the respondent filed a Motion to Close the claim for lack of prosecution. The motion alleged that the last hearing, scheduled for November 4, 1997, had been canceled, and the claimant had made no effort to pursue his claim for more than six months.
On June 3, 1998, the Director of the Division of Workers’ Compensation (Director) issued an Order to Show Cause why the claim should not be closed for failure to prosecute for the last six months. The order instructed the claimant to “tell the Division of Workers’ Compensation what recent effort you have made or are making to pursue your claim for workers’ compensation benefits, and why you think your claim should remain open.” The order directed that this be “done in writing,” and that the response be filed with the “Deputy Director of the Division of Workers’ Compensation at 1515 Arapahoe Street, Denver, Colorado, 80202.” The order further stated that “if the response has not been submitted, or we do not receive a response within thirty (30) days showing why this claim should remain open, it will be automatically closed.”
The Order to Show Cause was mailed to the claimant and attorney Morrell. By letter dated June 19, 1998, attorney Morrell advised the Division that he did not represent the claimant with respect to the Order to Show Cause. A copy of this letter was mailed to the claimant and attorney Blundell.
On June 25, 1998, attorney Blundell filed an Entry of Appearance announcing his representation of the claimant. This document also stated that counsel objected to any admissions of liability, and requested a change of physician to Dr. Donner. The entry of appearance was filed with the Division of Workers’ Compensation, 1515 Arapahoe Street Denver, Colorado 80202-2117.
Apparently, nothing further transpired until December 1999, when attorney Blundell filed an application for hearing requesting medical and temporary disability benefits. A prehearing conference was held, and on January 6, 2000, another ALJ restricted the issue for hearing to “whether the Entry of Appearance filed by counsel dated June 25, 1998 constituted good cause under the show cause order as to why the claim should not be closed.” The hearing was held on March 6, 2000, but the evidence was restricted to documents submitted by the claimant and respondent.
On March 30, 2000, the ALJ entered an order determining the claim was closed on July 30, 1998, based on the claimant’s failure to respond to the Director’s Order to Show Cause. The ALJ found that the Entry of Appearance, although filed within 30 days of the Director’s order, “did not respond” to the order, and did not “indicate recent efforts the claimant had made or was making to pursue the claim for benefits and why the claim should remain open.” The ALJ also found the entry of appearance was not accompanied by an application for hearing or “any other indication of an action in pursuit the claim.”
On review, the claimant contends that the Entry of Appearance constituted a sufficient response to the Order to Show Cause, because it contained a request for a change of physician and indicated the claimant’s “clear intent to seek additional medical benefits, at a minimum.” Because we conclude the Entry of Appearance constituted a response to the Order to Show Cause, we remand for entry of a new order.
Section 8-43-207(1)(n), C.R.S. 2000, authorizes the Director to dismiss all unresolved issues, upon 30 days notice to all parties, “for failure to prosecute the case unless good cause is shown why such issues should not be dismissed.” Pursuant to this statute, the Director enacted Rule of Procedure X (A) (2) (b), 7 Code Colo. Reg. 1101-3 at 37, authorizing automatic closure of a claim unless the claimant responds to an order to show cause within 30 days.
We have previously held that dismissal of a claim under these provisions is discretionary, and we may not interfere with the ALJ’s order unless an abuse has been shown. An abuse is shown where the ALJ’s order 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); Aragon v. Western Concrete Inc.,
W.C. No. 4-309-618 (June 4, 1999).
We agree with the claimant insofar as he argues that the Entry of Appearance filed by attorney Blundell was sufficient to constitute a response to the Order to Show Cause. Neither the statute nor the rule prescribes a particular form or caption for a response to an order to show cause based on failure to prosecute. The Director’s Order to Show Cause required merely that the response be in writing and filed with the Division. Further, the Order to Show Cause required the claimant to describe efforts which “you have made or are making to pursue your claim,” and why the claim should remain open. (Emphasis added).
Here, the Entry of Appearance was in writing, and was filed with the Division. Although it was not directed to the attention of the “Deputy Director,” we do not perceive this fact to be decisive since the Order to Show Cause refers to the collective “we” when referring to the time limit for receiving a response. Further, the Entry of Appearance is responsive to the Order to Show Cause because it describes at least two actions the claimant was taking to pursue his claim for benefits. First, the claimant retained new counsel to represent him in the claim for benefits. Second, the claimant indicated his desire to obtain treatment from a new physician. Implicit in these requests was the claimant’s assertion the claim should not be closed because he sought additional benefits.
Under these circumstances, the Entry of Appearance substantially complied with the requirement for a written response to the Order to Show Cause. See Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994) (cover letter constituted substantial compliance with statutory requirement for certificate of mailing) Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177
(1970) (letter announcing attorney’s representation of claimant and request to present medical testimony was sufficient to constitute petition for review under statute). The mere fact the document was captioned as an Entry of Appearance does not, in our view, prohibit the document from serving as the claimant’s answer to the Order to Show Cause, especially because the document was filed within the thirty- day response period established by the order. It follows that we conclude the ALJ abused his discretion in determining that the Entry of Appearance did not respond to the Order to Show Cause.
We also conclude the ALJ abused his discretion in dismissing the claim because the evidence fails to support his finding that The Entry of Appearance “did not indicate recent efforts the claimant had made or was making to pursue the claim for benefits.” As noted, the Entry of Appearance reveals the claimant retained new counsel, and was requesting a change of medical provider. Further, there is no requirement in the statute, rule, or the Director’s order that the claimant must file an application for hearing in order to prosecute the claim.
We cannot ascertain whether the ALJ would have determined the claimant showed good cause for the failure to prosecute if the ALJ recognized the claimant’s efforts to pursue the claim as revealed by the Entry of Appearance. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988). Consequently, we remand the matter to the ALJ with directions to determine whether the claimant showed good cause for the failure to prosecute the claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 30, 2000, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
Copies of this decision were mailed November 14, 2000 to the following parties:
Leonel Diaz-Hernandez, P. O. Box 92, Madrid, N.E. 69150
Deb Carlock, Workers Compensation Coordinator, Excel Corporation, C. S. 4100, Ft. Morgan, CO 80701
Suzan Hassebrook, Crawford Company, P. O. Box 6502, Englewood, CO 80155-6502
Richard K. Blundell, Esq., and Lauren Cabot Oray, Esq., 1024 8th St., Greeley, CO 80631 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy