W.C. No. 3-957-008.Industrial Claim Appeals Office.
June 21, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ Friend) dated December 23, 2004, which closed the claim for all additional benefits except future medical benefits. We affirm.
The claimant suffered an admitted injury in 1989. In 1997, the respondents filed a Final Admission of Liability (FAL) for maximum permanent partial disability benefits and future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant timely objected to the FAL but took no other action. Consequently, in February 1998 the respondents moved to dismiss the claim for failure to prosecute. The motion was denied but refiled in September 1999.
Eventually, the claim was set for hearing on April 19, 2000. In a Supplemental Order dated April 2001, ALJ Coughlin rejected the claimant’s challenge to the prior determination of maximum medical improvement and denied a request for medical benefits in the form of surgery. The order reserved all other issues for future determination. We affirmed the Supplemental Order and the claimant appealed our order to the court. However, on November 15, 2001, the court dismissed the appeal.
In the interim the claimant applied for a hearing on the issue o Grover-type medical benefits. The hearing was set for October 2, 2001. The claimant’s attorney appeared at the hearing but the claimant did not attend. As a result, ALJ Harr issued an order requiring the claimant to show good cause why any claim for additional benefits should not be dismissed for lack of prosecution. The order also provided that in the absence of good cause, the claim would be automatically closed. The claimant did not timely respond to the October 2 show cause order.
In December 2003 the respondents moved to close the issue of Grover-type benefits on grounds the claimant had not accepted treatment. The motion was denied because the claimant applied for a hearing on the issue of permanent total disability (PTD) benefits. However, the application for hearing was vacated on grounds the issue of PTD was closed. ALJ Felter then granted the claimant’s request for an evidentiary hearing on the issue of whether the claim was closed.
Following a hearing on December 1, 2004, ALJ Friend issued the order on review. ALJ Friend credited the claimant’s testimony that he did not attend the October 2 hearing because his car broke down. However, the claimant admitted he received the October 2 show cause order less than 30 days from the date it was issued but never filed a written response. Under these circumstances, ALJ Friend determined the claimant failed to show good cause for failing to respond to the October 2 show cause order. Therefore, ALJ Friend closed the claim as to all issues excep Grover-type medical benefits.
On appeal the claimant contends ALJ Friend lacked authority to dismiss issues not endorsed for adjudication as a sanction for a claimant’s failure to appear at a hearing. We disagree.
Contrary to the claimant’s contention, § 8-43-207(1)(n), C.R.S. 2004, authorizes ALJs to “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.” (Emphasis added). Where the ALJ’s finding of failure to prosecute is based on the claimant’s failure to attend a hearing set on the claimant’s application for hearing, it is within an ALJ’s discretion whether to dismiss all
issues. Williams v. Schlage Lock, W.C. No. 4-543-012 (February 4, 2004) Aragon v. Western Concrete Inc., W.C. No. 4-309-618 et. al., (June 4, 1999). We may not interfere with an ALJ’s exercise of discretion in the absence of an abuse, as where the 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 admitted receipt of the October 2 show cause order. Consequently, the claimant had actual knowledge that the claim would be closed if he failed to respond within 30 days. However, the claimant took no action to prosecute the claim for 2 years. (Tr. pp. 9, 12). Further, the claimant was afforded an evidentiary hearing to refute the respondents’ contention that the claimant failed to prosecute the claim. Under these circumstances, we reject the claimant’s contentions that he was denied due process. See Cramer v. Industrial Claim Appeals Office, 885 P.2d 318 (Colo.App. 1994) (a party’s failure to avail itself of “an existing process does not equate to a lack of due process”).
With record support ALJ Friend found the claimant previously litigated the claim without an attorney. (Tr. p. 10). Further, the arguments advanced by the claimant at the hearing on December 1, 2004, were known to the claimant on October 2, 2001. Nevertheless, the claimant took no action to prosecute the claim between October 2, 2001 and August 8, 2003 when his current counsel of record entered her appearance in the record. Under these circumstances, the ALJ reasonably inferred the claimant failed to establish good cause why the claim should not be dismissed for failure to prosecute. See Dyrkopp v. Industrial Claim Appeals Office
30 P.3d 821(Colo.App. 2001) (pro se claimant’s presumed to have knowledge of the applicable statutes and must be prepared to accept the consequences of own mistakes). Therefore, we cannot say ALJ Friend abused his discretion in dismissing all requests for additional benefits other tha Grover-type benefits on grounds the claimant failed to prosecute the claim.
To the extent the claimant has raised further arguments, they do not alter our conclusions. Moreover, because the record supports ALJ Friend’s finding that the claimant failed to prosecute the claim it is immaterial whether ALJ Friend erred in finding the claim was previously closed by virtue of the respondents’ FAL, the supplemental order of ALJ Coughlin or our prior order in the claim. Consequently, we need not consider the claimant’s arguments on this issue.
IT IS THEREFORE ORDERED that the order of ALJ Friend dated December 23, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Romney B. Tilbury, Golden, CO, Academy School District Colorado Springs, CO, Transportation Insurance Company, c/o Ruth Anne Kuehl, CNA Insurance Companies, Denver, CO, Britton Morrell, Esq., Greeley, CO, (For Claimant).
Tama L. Levine, Esq., Denver, CO, (For Respondents).