Claim Closure for Failure to Prosecute

In De Chavez, Claimant was working as a custodian for her employer when she allegedly tripped and fell while utilizing a pallet jack, hurting her lower back and tailbone on May 11, 2017. A few days after this incident, the employer filed the requisite first report of injury with the state and contested this claim of injury. On September 12, 2017, Claimant filed a claim for compensation.

On January 18, 2018, employer served Claimant with interrogatories, which Claimant failed to answer for two months. On March 19, 2018, employer obtained an order to compel Claimant to answer the interrogatories, and four days later, Claimant responded. Claimant took no further steps to prosecute her claim. On September 24, 2018, employer moved to close the claim under Rule 7-1(C), which allows for a party to request closure of a claim for failure to prosecute, when no activity to further the prosecution of a claim has happened in at least six months

On October 9, 2018, the Director of the Division of Workers’ Compensation issued a “show cause order.” This required Claimant to submit, in writing and within 30 days, good cause as to why her claim for compensation should not be closed. On the 30th day, Claimant responded, explaining that her claim should not be closed because she had applied for a hearing – attaching a copy of that application. The Director interpreted this response to be a request for additional time to show cause. As a result, the Director issued an order that granted Claimant 120 days to set and attend a hearing or to obtain an order to extend that deadline. Claimant would have until March 20, 2019 to take steps to keep her case from closing.

Claimant failed to take any actions, and on March 20, 2019, the employer filed a request to close this claim for compensation. The next day, the Director issued an order to close the claim. On April 10, 2019, Claimant filed a motion to review the director’s order. Claimant alleged that by closing her claim, the Director acted baselessly and violated her due process rights. In this motion, Claimant also argued it was entirely unclear what “activity” she needed to undertake to avoid the closure of her claim, as she applied for a hearing and could not meet the 120-day deadline due to the “crowded docket” in Greeley.

In this case, the Court of Appeals found the Director had not abused his discretion in closing the claim. The Court explained that an application for hearing was not sufficient to keep Claimant’s case from being closed, citing Rule 7-1(C), which states: “[a]n application for hearing…without further action… does not automatically constitute prosecution.” Claimant had four months to set the matter for hearing, but failed to do so. Additionally, Claimant blamed a crowded docket in Greely; however, there was no indication that Claimant attempted to contact the Division to try to schedule a hearing the 120 days allotted to her, nor did she provide evidence to the contrary. The Court also highlighted that in the original 120-day order, the Director stated that the order could be extended; however, claimant never sought an extension of this deadline for any reason.

For these reasons, the Court of Appeals concluded that Director had not abused his discretion, nor had he violated Claimant’s due process rights, in his closure of this claim for a failure to prosecute.
De Chavez v. Indus. Claim Appeals Office, 19CA2042 (Colo. Ct. App. September 17, 2020)

Want to know more? Contact Eric Pollart at or 877-259-5693.

December Newsletter 2020