W.C. No. 4-368-088Industrial Claim Appeals Office.
June 3, 1999.
FINAL ORDER
The respondent seeks review of orders of Administrative Law Judge Gandy (ALJ) dated June 25, 1998 and January 11, 1999, which required the respondent to pay workers’ compensation benefits and penalties. We dismiss the appeal of the order dated June 25, 1998, set aside the order dated January 11, 1999, and remand the matter for further proceedings on the issue of penalties.
The claimant alleged that he suffered a work-related injury during his employment for the respondent. Following a hearing on May 19, 1998, the ALJ entered an order dated June 25, 1998, which determined the claimant suffered a compensable injury, and required the respondent to pay workers’ compensation benefits of $10,096.85. The respondent did not timely appeal the June order.
The claimant subsequently requested an order imposing penalties for the respondent’s failure to comply with the June 25 order. Following a hearing on December 22, 1998, the ALJ entered a Summary Order which required the respondent to pay penalties of $80,000. On January 11, 1999, the ALJ entered Specific Findings of Fact which reduced the penalty to $5,048.43.
The respondent timely filed a Petition to Review the January 11, 1999 order. The respondent alleged that it had no notice of the hearings on May 19, 1998 and December 22, 1998. Therefore, the respondent argues the ALJ erroneously ordered the payment of workers’ compensation benefits and penalties.
The ALJ’s jurisdiction over the claim consists of two elements: personal jurisdiction and subject matter jurisdiction See People in the Interest of Clinton, 762 P.2d 1381 (Colo. 1988). Subject matter jurisdiction “concerns the court’s authority to deal with the class of cases which it renders judgment,” and cannot be conferred by consent or waiver. Id. at 1387, citing In re the Marriage of Stroud, 631 P.2d 168, 170
(Colo. 1981).
Personal jurisdiction is the legal authority to enter orders concerning the parties. People in the Interest of Clinton, 762 P.2d at 1386; In re the Custody of Nugent, 955 P.2d 584
(Colo.App. 1997). Due process protections provide that the ALJ does not have personal jurisdiction over a party unless the party has been provided fair and adequate notice of proceedings which may result in an order for the payment of benefits. See Stone’s Farm Supply, Inc. v. Deacon, 805 P.2d 1109, 1113 (Colo. 1991); Colorado State Board of Medical Examiners v. Palmer, 157 Colo. 40, 400 P.2d 914
(1965). However, unlike subject matter jurisdiction, personal jurisdiction can be waived or conferred by consent. In re the Custody of Nugent, 955 P.2d at 587. Accordingly, where a party attends a hearing without contesting jurisdiction, the party effectively consents to the ALJ’s exercise of personal jurisdiction. Cf. In re the Custody of Nugent, supra.
As we read the respondent’s Brief in Support of the Petition to Review, the respondent does not contest the ALJ’s subject matter jurisdiction. Rather, the respondent only contests the ALJ’s personal jurisdiction over the respondent on grounds that the respondent did not receive notice of the hearings.
The May 19 hearing transcript indicates that the respondent’s bookkeeper, Patricia Farber, appeared on behalf of the respondent and that Ms. Farber did not contest the ALJ’s personal jurisdiction over the respondent on the issues of compensability and benefits. (Tr. May 19, 1998, pp. 3-5). The respondent does not dispute Ms. Farber’s attendance at the May 19 hearing. Neither does the respondent make any arguments concerning Ms. Farber’s authority to represent the respondent. Section 13-1-127(2.5), C.R.S. 1998 (authorizing representation of corporations by a designated employee). Under these circumstances, we conclude that Ms. Farber effectively consented to the ALJ’s personal jurisdiction over the respondent, and waived any objection to the sufficiency of the notice. See Lopez v. Gibson Truck Lines, W.C. No. 4-008-295 (March 25, 1992).
In any case, the respondent does not deny timely receipt of the June 25 order, which expressly stated that the respondent attended the May 19 hearing and was represented by Ms. Farber. The respondent’s failure timely to appeal the June 25 order waived the argument that the ALJ did not have personal jurisdiction to order the respondent to pay workers’ compensation benefits.
Furthermore, because the respondent failed timely to appeal the June 25 award, the order is final and not subject to appeal See § 8-43-301(2), C.R.S. 199 ; Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984). Consequently, we do not consider the respondent’s contentions that the award of benefits was improper because the claimant failed properly to report the injury and failed to seek treatment from the designated provider.
In contrast, no one appeared on behalf of the respondent at the December 22, 1998, hearing and the respondent timely appealed the January 11, 1999, order. Accordingly, we conclude that the January 11 order must be set aside and the matter remanded to the ALJ for further proceedings concerning the respondent’s assertion that it did not receive notice of the hearing on December 22, 1998.
A properly executed certificate of mailing creates a presumption that a notice was received, but the presumption may be overcome by competent evidence. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Furthermore, if there is no direct evidence in the record to refute a party’s allegation of nondelivery, it is improper to reject summarily the allegation without a hearing to determine the party’s credibility. Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987).
Here, the record contains a certificate of mailing which shows that written notice of the December 22 hearing was mailed to the respondent at “1941 Heath Parkway, Fort Collins, CO 80524-2722.” The respondent does not dispute that the notice was mailed to the correct address. The respondent merely contends that it did not receive the notice.
Because the respondent’s allegation is factual in nature, we have no authority to determine its credibility on appeal. Section 8-43-301(8), C.R.S. 1998. Furthermore, there is nothing in the record which directly contradicts the respondent’s assertion. Consequently, the matter must be remanded to the ALJ for further proceedings concerning the credibility of the respondent’s allegation that it did not receive the notice of the December 22 hearing.
On remand the ALJ must afford the respondent an opportunity to prove that it did not receive notice of the December 22 hearing, and afford the claimant an opportunity to rebut the respondent’s allegation. If the ALJ determines the respondent was not afforded adequate notice of the hearing, the ALJ shall hold a new hearing on the issue of penalties after the respondent has been given proper notice. Conversely, if the ALJ determines that the respondent had adequate notice of the hearing, the ALJ shall reenter the order of January 11, 1999, and shall transmit the matter to us for further review.
However, in remanding the matter we should not be understood as expressing any opinion on the credibility of the respondent’s allegation. That is a determination solely within the province of the ALJ as the fact-finder.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 11, 1999, is set aside and the matter remanded to the ALJ for further proceedings consistent with the views set forth herein.
IT IS FURTHER ORDERED that the respondent’s appeal of the ALJ’s order dated June 25, 1998 is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed June 3, 1999 to the following parties:
Marjorie Albert, PO Box 581, Kersey, CO 80644-0581
Vector Sports Inc, 1941 Heath Pkwy, Ft Collins CO 80524-2722
Esteban A Salazar, Esq, 1439 5th St, Greeley, CO 80631 (For the Claimant)
Cynthia J. Jones, Esq., Gregory S Bell, Esq., 322 East Oak, Ft Collins CO 80524 (For the Employer)
Special Funds Unit, Attn: Kathleen Pennucci, Division of Workers’ Compensation, (Interagency Mail)
Employers Investigations Unit, Attn: Barbara Carter, Division of Workers’ Compensation (Interagency Mail)
BY: A. Pendroy