W.C. No. 4-242-726Industrial Claim Appeals Office.
October 15, 1996
ORDER OF REMAND
The pro se claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which dismissed with prejudice her claim for workers’ compensation benefits. We set the order aside and remand for further proceedings.
This case has a long and complicated procedural history. Suffice it to say that over the period from July 6, 1995 to July 24, 1996, the ALJ issued several orders which directed the claimant to attend an independent medical examination (IME) requested by the respondents, and the respondents were directed to pay for the IME. However, the claimant repeatedly failed to appear for the scheduled IME examinations.
According to various documents submitted by the claimant, including a “Motion to Compel” dated March 3, 1996, her failure to attend the examinations was partially attributable to the respondents’ failure to pay medical benefits. However, the claimant also stated the following:
“The medical providers (IME), chosen by the respondents, insist on preauthorization and prepayment by the respondent before the IME takes place. If the claimant has the IME without the provider requested preauthorization and prepayment in place she is responsible financially for payment of the IME. The law provides the IME be paid for by the party requesting it.”
The claimant indicated that the respondents “continue to refuse” to pay for the IME.
In response to the claimant’s Motion to Compel, the respondents submitted various documents purporting to show that the respondents timely submitted payment for an IME scheduled on March 27, 1996. When the claimant failed to attend the March 27 examination, the respondents filed a “Motion to Dismiss Claim With Prejudice” setting forth a detailed history of the case. The respondents alleged that the claimant’s failure to attend the IMEs was willful and knowing, and therefore, the claim should be dismissed under principles set forth in Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991).
On July 24, 1996, the ALJ dismissed the claim for benefits without holding a hearing. The ALJ stated that the claimant “has willfully and deliberately failed to attend numerous independent medical evaluations, including one scheduled for March 26, 1996, and ordered by the Administrative Law Judge in this case.”.
On review, the claimant repeats various arguments that she made throughout the course of the proceedings, including the assertion that the respondents refused to make timely payment for the IME examinations. Because there appears to be a substantive factual dispute, we remand for a hearing on the respondents’ motion to dismiss.
Fundamental tenets of due process require that, where an administrative adjudication turns on questions of fact, the parties must be “apprised of all the evidence to be submitted and considered, . . . afforded a reasonable opportunity in which to confront adverse witnesses and present evidence and argument in support of their position.” Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). As a practical matter, due process and § 8-43-201, C.R.S. (1996 Cum. Supp.), require that parties be afforded a hearing unless the record establishes that there are no disputed issues of material fact. Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969).
Here, the ALJ concluded that the claimant’s failure to attend the scheduled IME examinations was willful and deliberate, and justifies dismissal of the claim for benefits. However, the claimant has alleged facts which, if true, tend to indicate that her failure to attend the IMEs is a product of the respondents’ own refusal to pay for the IMEs in a timely fashion. Such evidence is highly relevant to the question of the claimant’s state of mind in failing to attend the IMEs, and therefore, also relevant to whether dismissal of the claim is an appropriate remedy. Sheid v. Hewlett Packard, supra.
Under these circumstances, the matter must be remanded for a hearing concerning the respondents’ motion to dismiss. In reaching this result, we should not be understood as expressing any opinion concerning the state of the evidence, the inferences to be drawn therefrom, or the relative credibility of the witnesses. Neither should we be understood as suggesting that the ALJ has been anything but forthright in his attempts to explain the proceedings to the claimant.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 24, 1996, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
Copies of this decision were mailed October 15, 1996 to the following parties:
Pamela G. Wubben, P.O. Box 484, Johnstown, CO 80534
Northern Colorado Restaurant Corp., 6550 Gunpark Dr., Boulder, CO 80301-3337
Travelers Indemnity Co. of America, Attn: Chris Barnes, P.O. Box 173762, Denver, CO 80217-3762
Christina M. Middendorf, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
By: ____________________