W.C. No. 4-415-781Industrial Claim Appeals Office.
July 31, 2000
ORDER OF REMAND
The pro se claimant filed a Petition to Review an order of Administrative Law Judge Schulman (ALJ) which denied and dismissed the claim for workers’ compensation benefits. We remand the matter for further proceedings.
Based upon the evidence presented at a hearing on November 18, 1999, the ALJ determined the claimant failed to prove that he sustained a compensable injury, and therefore, the ALJ denied the claim for workers’ compensation benefits. The claimant timely appealed and a briefing schedule was purportedly mailed to the claimant on April 17, 2000. The matter was subsequently transmitted to us for review. By letter dated July 26, 2000, we notified the parties that the record did not contain “a brief from the appealing party.” On July 28, 2000, we received a written statement from the claimant in which he asserted that he did not file a brief because he did not receive a briefing schedule after paying for the transcript. Moreover, the claimant indicated an interest in submitting a brief in support of the Petition to Review.
Section 8-43-301(4), C.R.S. 1999, provides that the appealing party shall have twenty days after the briefing schedule is established to file a brief in support of the petition to review, and due process requires that the claimant be afforded notice of the briefing schedule. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Although a properly executed certificate of mailing may create a presumption that a notice was received, the presumption may be overcome by competent evidence. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Furthermore, it is improper to reject a party’s statement that notice was not received without affording the party an opportunity for a hearing. See Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987).
The factual assertions of the claimant, if credited, establish that he did not receive notice of the opportunity to file a brief in support of his petition to review. Moreover, the record does not contain evidence which directly contradicts these assertions. Under these circumstances, the matter must be remanded to the ALJ to conduct further proceedings concerning the claimant’s allegations. See § 8-43-301(8), C.R.S. (1999 Cum. Supp.) (restricting the Panel’s authority concerning factual matters to a review of the ALJ’s findings).
If, on remand, the ALJ determines the claimant did not receive adequate notice of the April 17 briefing schedule, a new briefing schedule shall be established. After affording the claimant an opportunity to file a petition for review, the ALJ shall then take further action as provided by § 8-43-301(5), C.R.S. 1999. If the ALJ determines that the claimant had notice of the briefing schedule, the ALJ shall enter an order to that effect and, immediately retransmit the record to us for review of the claimant’s substantive arguments.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Copies of this decision were mailed July 31, 2000
to the following parties:
Timothy Fleming, 1843 S. Lincoln St., Denver, CO 80210
Judson Enterprises, All West Distributors, P. O. Box 276977, Sacramento, CA 95827-6977
Clarendon National Insurance, Frontier Risk Management, P. O. Box 1375, Denver, CO 80201
Kathleen M. North, Esq., 999 18th St., #1600, Denver, CO 80202-2416 (For Respondents)
BY A. Pendroy