W.C. No. 4-680-295.Industrial Claim Appeals Office.
October 2, 2008.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge (ALJ) Friend dated October 15, 2007 that vacated his previous show cause order. We decline to disturb ALJ Friend’s decision and affirm the subsequent final order of ALJ Stuber dated March 19, 2008.
The claimant failed to appear at a hearing scheduled for 9:00 a.m. on July 27, 2007 before ALJ Friend, who issued a show cause order on that date. The July 27, 2007 show cause order found that the claimant had failed to appear and denied and dismissed her claim for compensation and medical benefits for lack of prosecution unless the claimant showed good cause in writing within thirty days from the date of the order.
On October 15, 2007, without an evidentiary hearing, ALJ Friend issued an order vacating the show cause order. In the order of October 15, 2007, he found that the claimant’s counsel had responded to the show cause order by letter dated August 13, 2007 and September 10, 2007. ALJ Friend also found that the respondent had objected to the claimant’s response. In his order of October 15, 2007, the ALJ found that the claimant had not appeared for the hearing because she was under the mistaken impression that the hearing was scheduled for the afternoon and because she was receiving medical care at St. Mary-Corwin Hospital at the time of the hearing.
The matter was then set for hearing before ALJ Stuber on February 29, 2008. At the February 29, 2008 hearing, the respondent argued that ALJ Friend had inappropriately vacated the show cause order. ALJ Stuber declined to rule on the
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propriety of ALJ Friend’s order finding that it was the “law of the case.” However, ALJ Stuber allowed the respondent to develop the record on the issue of good cause by cross-examination of the claimant on her reasons for not appearing at the hearing. ALJ Stuber, in an order March 19, 2008, found the claim compensable and ordered the respondent to pay certain medical bills and file a bond issued by a surety company.
On appeal, the respondent first contends that ALJ Friend erred in vacating the order to show cause because he made factual findings in his order that were unsupported by any evidence or allegation in the record. We are not persuaded.
Section 8-43-207(1)(n) C.R.S. 2008 provides that an ALJ may dismiss all issues, except for resolved issues and benefits already received, “for failure to prosecute the case unless good cause is shown why such issues should not be dismissed.” 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). The appellate standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985); Tilbury v. Academy School District No. 20, W. C. No. 3-957-008 (June 21, 2005).
Here, the respondent has cited extensively from the transcript of the hearing before ALJ Stuber in arguing that the claimant was not credible and did not have good cause for failing to appear. However, this evidence was not before ALJ Friend. Further, the respondent has failed to submit into the record the letters from the claimant and the letter from the respondent that were considered by ALJ Friend when he vacated the show cause order.
It is the duty of the party asserting error to present a record demonstrating that error. See Fleet v. Zwick, 994 P.2d 480, 483
(Colo.App. 1999) (party alleging error has burden to present record sufficient to disclose the error); see also, People v. Ullery 984 P.2d 586
(Colo. 1999). People v. Tippett, 733 P.2d 1183, 1194 (Colo. 1987); Jordan v. Black Gold Asphalt W. C. No. 4-562-913 (September 28, 2004); Reynolds v. MCI Services W.C. No. 4-309-761 (August 12, 2002). If the appealing party fails to provide us with such a complete record, we must presume the correctness of the proceedings below. See People v. Morgan, 199 Colo. 237, 242, 606 P.2d 1296, 1300 (1980); Herrera v. Anderson, 736 P.2d 416, 418
(Colo.App. 1987). The respondent did not place into the
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record the information that was before ALJ Friend when he made his decision. Consequently, we presume the regularity of the ALJ Friend’s order.
The respondent also argues that even if one were to accept the allegations from the claimant as true, as a matter of law she failed to demonstrate good cause for her failure to appear for hearing. We perceive no abuse of discretion in ALJ Friend’s determination that good cause was shown to vacate the show cause order.
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. However, ALJ Friend found that the claimant had not appeared for the hearing because she was under the mistaken impression that the hearing was scheduled for the afternoon and because she was receiving medical care at St. Mary-Corwin Hospital at the time of the hearing. We cannot say that missing a hearing to receive medical care coupled with error is not as a matter of law “good cause.”
The respondent finally argues that the ALJ erred in not holding a hearing to make factual findings regarding the claimant’s allegations for why she failed to appear for hearing. The respondent argues that it requested that ALJ Friend set a hearing if he felt that the claimant’s allegations of good cause were sufficient.
We do not find in the record the respondent’s objection to the claimant’s response to the show cause order as described by the respondent in its brief in support of its petition to review. Our review is restricted to the record before ALJ Friend, and the factual assertions made on appeal by the respondent 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).
In any event, we find no error by the ALJ in vacating his order to show cause based on the written responses of the parties, but without conducting an evidentiary hearing. See, e.g., C.R.C.P. 121, § 1-10 (court may require parties to show cause in writing why action should not be dismissed for lack of prosecution); cf Hafer v. C D Trucking, supra (hearing whether to dismiss for failure to prosecute necessary where subject party’s factual allegations, if credited, provide basis for granting continuance).
We are not persuaded to disturb ALJ Friend’s order dated October 15, 2007 under the circumstances. Moreover, the respondent does not challenge ALJ Stuber’s final order.
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IT IS THEREFORE ORDERED that ALJ Stuber’s order dated March 19. 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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ANTONIA GOMEZ, PUEBLO, CO, (Claimant).
STEVEN U MULLENS, PC, Attn: JAMES A MAY, ESQ., PUEBLO, CO, (For Claimant).
KONCILJA KONCILJA, PC, Attn: LAWRENCE D SAUNDERS, ESQ., PUEBLO, CO, (For Respondents).
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