W.C. No. 4-495-182Industrial Claim Appeals Office.
November 15, 2001
ORDER OF REMAND
The pro se claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which dismissed the claim for benefits based on failure to prosecute. We set the order aside and remand for further proceedings.
In April 2001 the claimant filed a claim for benefits alleging an injury in 1988. A hearing was set for July 23, 2001, but the claimant failed to appear for the hearing. Consequently, on July 23 the ALJ issued an Order to Show Cause in writing why the claim should not be dismissed for failure to prosecute. The claimant filed a timely response to the order. The claimant stated that at the time of the scheduled hearing he telephoned the “Department of Labor” and advised “he could not show because one of his dogs became ill.”
On August 23, 2001, the ALJ entered an Order of Dismissal which denied and dismissed the claim for lack of prosecution in accordance with § 8-43-207(1)(n), C.R.S. 2001. The ALJ concluded the claimant’s response to the Order to Show Cause “fails to demonstrate good cause for his failure to appear.”
The claimant’s petition to review is largely devoted to allegations of fact concerning the alleged injury. However, the petition states the claimant had “more important priorities” than the hearing and the health of the claimant’s dog was of greater concern. Thus, we understand the claimant to be challenging the correctness of the ALJ’s Order of Dismissal.
Section 8-43-207(1)(n) 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.” Although the statute does not establish standards for determining “good cause,” it is “well-established that the unexpected absence of a party is generally a good reason for granting a continuance.” See Cherry Creek School District v. Voelker, 859 P.2d 805
(Colo. 1993); Pollard v. Walsh, 194 Colo. 566, 575 P.2d 411 (1978) (denial of continuance was an abuse of discretion where party failed to appear because of sudden illness).
Admittedly, 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). However, in order to afford adequate grounds for appellate relief, the ALJ’s findings must be sufficient to indicate the basis of the order and to resolve pertinent conflicts in the evidence. Section 8-43-301(8), C.R.S. 2001. Further, a hearing is necessary where a party alleges facts which, if credited, would afford a basis for granting a continuance. See Pueblo School District No. 60 v. Clementi, 776 P.2d 1152 (Colo.App. 1989); Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987) Lasorella v. Novare Biomedical Services, W.C. No. 4-167-687 (January 12, 1996).
Initially, we conclude that, under some factual circumstances, the illness of a pet or other domestic animal would establish “good cause” for failure to appear at a hearing. If the illness is sudden, serious and does not afford the party an opportunity to make alternative arrangements for care of the animal, good cause might be shown for the failure to appear. This is particularly true if the party provides timely notice to the ALJ of the emergent circumstances.
Here, we cannot ascertain whether the ALJ credited the claimant’s written statement and concluded that it did not show good cause, or discredited the statement and, therefore, concluded the claimant failed to show any reason for the failure to appear. In either scenario, the ALJ should have conducted a hearing to ascertain the particular circumstances underlying the dog’s illness. The claimant’s statement permits an inference that the sickness was an emergent situation which could justify a finding of good cause for the failure to appear. A hearing was necessary to determine the claimant’s credibility and ascertain the particular circumstances of the dog’s alleged illness, and ultimately whether the claimant showed good cause for the failure to appear. Pueblo School District No. 60 v. Clementi, supra.
Under these circumstances, the ALJ’s order dismissing the claim must be set aside, and the matter remanded with directions to conduct a hearing to determine whether or not the claimant can establish good cause for his failure to appear for the hearing scheduled on July 23, 2001.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 23, 2001, is set aside, and the matter is remanded for further proceedings in accordance with this order.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed November 15, 2001 to the following parties:
Larry Hafer, Box 1172, Sterling, CO 80751
Darwin L. Elkins, C D Trucking, Inc., P. O. Box 986, Evergreen, CO 80439
BY: A. Pendroy