APPEARANCES:

 

Claimant, José R. Benavides, Pro Se

 

Self-Insured Employer, J R Simplot Co., by

Evans, Craven & Lackie, P.S., per

Gregory M. Kane

 

 

          The claimant, José R. Benavides, filed an appeal with the Board of Industrial Insurance Appeals on January 28, 2005 , from an order of the Department of Labor and Industries dated January 13, 2005 .  In this order, the Department affirmed its order of October 21, 2004 , in which it affirmed a prior order dated July 29, 2004 , in which the Department denied the claimant's application to reopen.  The claimant's appeal is DISMISSED. 

DECISION

           Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the claimant to a Proposed Decision and Order issued on January 25, 2007 , in which the industrial appeals judge dismissed the claimant’s appeal.  All contested issues are addressed in this order.

           The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed.  The rulings are affirmed.  We have granted review to decide if our industrial appeals judge properly dismissed this matter.  In this case, the pro se claimant, José Benavides, had a history of missed appearances.  Fourteen conferences were held in this matter with poor attendance on the part of Mr. Benavides or his representatives.  While he secured both lay and legal representation during the pendency of his appeal, his attention to the Board proceedings remained unsatisfactory.  Mr. Benavides also failed to appear for two agreed examinations, which might have lead to the resolution of his appeal.  After his hearing was finally scheduled, our industrial appeals judge properly issued a litigation order, in which she addressed pre-trial scheduling, discovery, and post-hearing deadlines. 

           When the claimant’s attorney failed to confirm witnesses on the specified deadline, the employer brought a motion to dismiss.  Our industrial appeals judge scheduled a telephone hearing to hear oral argument on the motion.  At this point, Mr. Benavides was represented by counsel.  His [2] attorney sent a letter one month prior to the confirmation deadline, in which he indicated that they were unable to confirm any expert witnesses.  Despite that fact, Mr. Benavides was unwilling to dismiss the appeal.  During the telephone hearing, our industrial appeals judge granted the motion to dismiss on the record.  She indicated that she would memorialize her ruling in a Proposed Decision and Order.

           In supporting the actions of our industrial appeals judge, we remain mindful of the Court of Appeals' ruling in Watt v. Weyerhauser, 18 Wn. App. 731 (1977).  In the Watt opinion,                                                                                                                                                                                             the court ruled that a worker’s appeal could be dismissed only at a hearing.  A hearing was distinguished from a conference.  The court noted that, unlike a conference, a hearing is a trial de novo on sworn testimony in which the Board performs an essentially judicial function and the purpose is to decide the issues on appeal.  Mr. Watt’s appeal was dismissed following the intial conference.  At the first conference, the appeal was dismissed and held in suspension.  The claimant was given a certain amount of time to come forward with proof that he was ready to proceed and had medical evidence in support of his appeal.  After Mr. Watt’s attorney missed a suspension deadline, the case was dismissed without a hearing. 

           Unlike Mr. Watt, Mr. Benavides was represented by counsel in a hearing not a conference.  The hearing was held pursuant to due and proper notice, and the purpose was to determine the disposition of the appeal.  We believe that this type of proceeding satisfies the requirement of Watt that a hearing precede a decision to dismiss the appeal.  Although the claimant did not voluntarily dismiss his appeal, his counsel made the representation that he would be unable to present a legally sufficient case.  His attorney was obligated to ensure that Mr. Benavides understood that the hearing on the motion could result in the dismissal of his appeal.  Based on the pleadings and notices, there is no reason to question notice in this matter.

           In the Watt ruling, the Court pointed out that the purpose of a hearing is to decide the issues on appeal.  The dispositive issue in Mr. Benavides case was his inability to present a prima facie case.  Mr. Benavides received judgment on his appeal in the form of a dismissal. 

           The fact that this hearing was conducted by phone with parties located throughout the state did not detract from the dignity of the proceeding.  Measures which preserve efficiency and accommodate the partie s s hould be encouraged provided that they do not interfere with the efficacy of the process.

           Historically, this Board has adhered to the principle that the least severe sanction should be imposed provided that the purpose of discovery is not undermined.  In re Waheed [3] Al‑Maliki, BIIA Dec., 01 14923 (2003).  In a situation where a party fails to confirm expert testimony, the prescribed remedy is to cancel the claimant’s hearing time while reserving enough time for the claimant to present his own testimony.  While confirmation of witnesses is one of the factors underlying the dismissal, there is more at issue here.  The claimant’s attorney admitted that he had no witnesses and was not planning on securing any expert testimony for the hearing.  The actual admission that the worker cannot present a case, justifies the harsher remedy.  This is not an issue of discovery, but an issue of legal sufficiency as contemplated by CR 41(b).  We stand behind the actions of our industrial appeals judge.  She properly scheduled a hearing with due and proper notice to all parties.  Her decision to dismiss the appeal was correct, justified by the circumstances presented here, and consistent with her duties and power pursuant to WAC 263-12-045(k).

 

FINDINGS OF FACT

1.       The claimant, José R. Benavides, filed an application for benefits with the Department of Labor and Industries on August 21, 2000 , in which he alleged that he sustained an industrial injury in the course of employment with J.R. Simplot Company on July 26, 2000 .  In an order dated August 25, 2000 , the claim was allowed.  On July 19, 2001 , the Department issued an order in which it closed the claim without further award for time loss compensation or permanent partial disability.  On September 10, 2001 , the claimant filed a protest of the order of July 19, 2001 , and on October 24, 2001 , the Department issued an order in which it affirmed its order of July 19, 2001 .  The claimant filed an appeal of the order of October 24, 2001 , on December 10, 2001 .  The Board granted the appeal under Docket No. 01 23234 on January 8, 2002 , and on October 22, 2002 , the Board entered an order in which it dismissed the appeal in Docket No. 01 23234.

 

On July 19, 2004 , the claimant filed an aggravation application.  On July 29, 2004 , the Department entered an order in which it denied the aggravation application.  On August 19, 2004 , the claimant filed a protest of the order of July 29, 2004 .  On September 23, 2004 , the Department issued an order in which it held its order of July 29, 2004 , in abeyance.  On October 21, 2004 , the Department entered an order in which it affirmed the order of July 29, 2004 .  On November 4, 2004 , the claimant filed a Notice of Appeal of the order of October 21, 2004 ; this appeal was assigned Docket No. 04 24990.  On November 12, 2004 , the Department issued an order in which it held its order of October 21, 2004 , in abeyance.  On November 29, 2004 , the Board issued an order in which it granted the appeal in Docket No. 04 24990.  On January 13, 2005 , the Department issued an order in which it affirmed its order of October 21, 2004 .  On January 28, 2005 , the claimant filed a Notice of Appeal from the order of January 13, 2005 .  On February 9, 2005 the Board entered an order in which it vacated its November 29, 2004 order in which it granted the appeal in Docket No. 04 24990. [4]  On February 10, 2005 , the Board entered an order in which it granted the claimant's appeal of the January 13, 2005 order under Docket No. 05 10661.

 

2.       The claimant failed to confirm any expert testimony nor was he able to obtain any medical expert willing to testify on his behalf.

 

 

CONCLUSIONS OF LAW

 

1.       The Board of Industrial Insurance Appeals has jurisdiction over the parties to and the subject matter of this appeal.

 

2.       Pursuant to CR 41(b), the claimant's January 28, 2005 appeal of the Department order of January 13, 2005 , is DISMISSED.

 

           It is so ORDERED.

           Dated this 6th day of June, 2007.