IN THE MATTER OF THE CLAIM OF MARIO C. MONDRAGON, Claimant, v. THE ALLEN COMPANY, INC., and Employer, EMPLOYERS COMPENSATION INSURANCE CO., Insurer, Respondents.

W.C. No. 4-759-034.Industrial Claim Appeals Office.
November 12, 2009.

FINAL ORDER
The respondents seek review of a supplemental order of Administrative Law Judge Harr (ALJ) dated August 7, 2009 that held the respondent insurer liable for specific disability and medical benefits, together with a disfigurement award. We affirm.

This matter proceeded to hearing on the claimant’s application. The respondents failed to appear. The ALJ entered his initial full order on April 29, 2009. The respondents appealed and the ALJ entered the supplemental order under consideration. The ALJ agreed with the respondents that it was error to award permanent partial disability benefits since the claimant failed to identify such benefits as an issue on his applications for hearing and dismissed the claim for permanent partial disability benefits without prejudice. However, the ALJ found a compensable injury and based on an average weekly wage of $520, awarded temporary total disability and temporary partial disability benefits, together with specific medical benefits and $4,000 as a disfigurement award. The ALJ ordered only the insurer to pay the benefits.

Several of the ALJ’s findings are summarized as follows. The insurer received a “legally sufficient notice” of the hearing in the form of a notice of hearing from the Office of Administrative Courts. However, neither the insurer nor the employer appeared at the hearing. The claimant pulled muscles in his lower back while unloading boxes on April 15, 2008. His symptoms continued to worsen and the claimant sought treatment. A magnetic resonance imaging scan revealed myositis of paraspinous muscles. The claimant underwent surgery, which resulted in disfigurement. Furthermore, crediting Dr. Turner’s testimony, the claimant pulled his muscle at work, which damaged his muscle

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tissue. A strep infection in his blood infected the damaged muscle and caused the development of pyomositis, which required medical treatment. The ALJ was persuaded that the claimant sustained a work-related injury and awarded various benefits to be paid by the insurer.

The respondents assert that the claimant violated their due process rights by not issuing an order to show cause as to why they failed to appear. The respondents also argue that the ALJ erred by proceeding to a hearing when the employer did not receive notice of the hearing as required by § 8-43-211(1), C.R.S. 2009. They further argue that the ALJ should have stricken the claimant’s amended application for hearing because it failed to set the hearing in accordance with Office of Administrative Courts’ Rule of Procedure (OACRP) 8(F), 1 Code Colo. Reg. 104-3 (2009). According to the respondents, they did not have adequate notice of the hearing under the circumstances. We disagree that the ALJ erred under the circumstances.

The fundamental requirements of due process are notice and an opportunity to be heard. Due process contemplates that the parties will be apprised of the evidence to be considered and afforded a reasonable opportunity to present evidence and argument in support of their positions. Inherent in these requirements is the rule that a party will receive adequate notice of both the factual and legal bases of the claims and defenses to be litigated See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo. App. 1990).

The respondents first argue that the ALJ was obligated to issue a show cause order in order to avoid violating their entitlement to be notified of a proceeding that could deprive them of a significant property interest. We review the matter of issuing a show cause order under the abuse of discretion standard. See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985) (abuse of discretion occurs if, under the totality of the circumstances, the ALJ’s determination exceeds the bounds of reason). We find no deprivation of the insurer’s opportunity to present evidence at the hearing.

The ALJ found that the insurer received notice of the hearing and the record supports that finding as evidenced by the notice itself. The insurer failed to appear at the hearing or request a continuance or otherwise seek an opportunity to establish good cause for a continuance. See § 8-43-207(1)(j), C.R.S. 2009 (ALJ may adjourn hearing to later date for taking of additional evidence for good cause shown). Moreover, we may presume that the ALJ later declined to issue a show cause order as requested in each of the respondents’ petition to review. See § 8-43-301(5), C.R.S. 2009 (ALJ may set matter for further hearing in ruling on petition to review). The insurer does not allege that it failed to receive notice of the hearing or was otherwise prevented from attending the proceedings See Willmott v. Ted Holstein, W.C. No. 4-369-164 (December 3. 1998)

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(award payable by pro se respondent upheld where respondent failed to appear at hearing but did not deny receiving timely notice of hearing; factual representations in brief not evidence that could be considered on appeal). The employer did not receive notice of the hearing; however, the ALJ was careful not to hold the employer liable for the claim. The respondents do not allege any specific harm or prejudice to the employer under the circumstances. We find no abuse of discretion by the ALJ in failing, sua sponte, to issue an order to show cause before ruling on the merits. We similarly find no abuse of discretion in implicitly denying the respondents’ request for further proceedings by transmitting the matter for review. See McMillan v. Just Cuts, Inc., W.C. No. 4-382-862 (June 14, 1999) (finding implicit denial by ALJ of request for additional hearing by transmission of file to Panel for review).

The respondents next argue that the ALJ erred by proceeding to hearing when the Office of Administrative Courts failed to send notice to the employer as a party as required by § 8-43-211 (1), C.R.S. 2009.

We note that the Workers’ Compensation Act provides in § 8-43-211(1), C.R.S. 2009, that at least thirty days prior to any hearing, “the office of administrative courts in the department of personnel shall send written notice to all parties by regular mail.” (Emphasis supplied). Moreover, the Office of Administrative Courts has promulgated a procedural rule regarding notice of hearings. OACRP) 11, 1 Code Colo. Reg. 104-3 (2009) provides as follows:

The OAC shall send a Notice of Hearing to the address on the application. If a Notice of Entry of Appearance or a response to the application is filed, the OAC shall send a Notice of Hearing to the address on the notice or response. If no Notice of Entry of Appearance or no response is filed, the OAC shall send a Notice of Hearing to the respondent’s address given on the application. The Notice of Hearing shall be mailed or delivered within 20 days of the date of the confirmation.

The Notice of Hearing was sent only to the insurer and not to the employer. The rule contemplates that the employer is a party in interest and entitled to separate notice of hearing. It appears that the failure to include the employer on the notice of hearing, contrary to § 8-43-211(1) and OACRP 11, resulted from administrative error.

However, the ALJ’s actions in this case are consistent with the administrative procedures governing the non-appearance of a party. OACRP Rule 23, 1 Code Colo. Reg. 104-3 (2009), generally prohibits an ALJ from entering orders against a non-appearing party unless it is evident that the non-appearing party received notice of the hearing according to the provisions of the rule. The employer failed to appear at the

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hearing and the ALJ declined to enter an order against it See § 8-44-105, C.R.S. 2009 (requiring insurer to be contractually liable to employee for compensation). The respondents do not assert any particular damage to the employer as a result of the ALJ’s order and we are not persuaded that the employer suffered any violation of due process under the circumstances.

The respondents finally argue that the ALJ should have stricken the claimant’s amended application for hearing. In support of their contention the respondents note that OACRP 8(F) requires hearings to be set between ten and 20 days from the date of filing an application for hearing and notice to set. The record indicates that the claimant filed an amended application for hearing on January 9, 2009, which indicated that a hearing would be set the same day. It does not appear from the record that the respondents filed a response to the application for hearing or otherwise appeared until after the hearing. Nonetheless, we conclude that the claimant’s apparent failure to set the hearing within the constraints of OACRP 8(F) presented a procedural error to which the insurer, having notice of the hearing, failed to object in a timely manner. The error was effectively waived by the insurer See, e.g., Lancaster v. CF I Steel Corp., 190 Colo. 463, 465, 548 P.2d 914, 916 (1976) (party waive objection to failure to plead affirmative defense where party argued against defense on its merits due to procedural error in treating motion to amend answer to include defense as granted).

This is not a case in which the insurer, which is the only respondent to be found liable to the claimant, did not have `the opportunity to confront adverse evidence or to submit evidence or argument in support of [its] position.” See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1078 (Colo. App. 1999) (ALJ erred in ruling based on maximum medical improvement where parties stipulated such issue premature and did not litigate issue). We find no reversible error under the particular circumstances of this case.

The claimant takes issue with the ALJ’s decision to eliminate the permanent partial disability benefits in his supplemental order. However, the claimant failed to appeal the ALJ’s decision. We therefore lack jurisdiction to consider the claimant’s assertions See F.R. Orr Constr. v. Rinta, 717 P.2d 965, 968 (court without jurisdiction to consider attack on Commission’s findings and conclusions without filing of corresponding petition to review).

IT IS THEREFORE ORDERED that the ALJ’s order dated August 7, 2009 is affirmed.

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INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

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MARIO C MONDRAGON, BROOMFIELD, CO, (Claimant).

THE ALLEN COMPANY, INC., BROOMFIELD, CO, (Employer).

EMPLOYERS COMPENSATION INSURANCE CO, Attn: DEE DEE GUTIERREZ, RENO, NV, (Insurer).

LAW OFFICE OF RANDALL WEINER, PC, Attn: RANDALL M WEINER, ESQ., BOULDER, CO, (For Claimant).

HALL EVANS, LLC, Attn: DOUGLAS J KOTAREK, ESQ/MEGAN E COULTER, ESQ, DENVER, CO, (For Respondents).

JEFFREY L SKOVRON, PC, Attn: JEFFREY SKOVRON, ESQ., BOULDER, CO, (Other Party).