W.C. No. 4-353-524Industrial Claim Appeals Office.
July 12, 2002
ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) dated January 3, 2002. We remand the matter for further proceedings.
On January 16, 2002, the respondent filed a Petition to Review the ALJ’s order. The Petition designated the December 5, 2001 hearing transcript as part of the appellate record. On July 1, 2002 the matter was “green-sheeted” to us for review. The record transmitted to us on review contained the claimant’s opposition brief but no brief in support of the Petition to Review. Consequently, our acknowledgment letter so notified the parties.
On July 3, 2002, we received a Motion for Extension of Time in Which to File Brief in Support of Petition to Review from the respondent’s attorney. The Motion alleged the respondent’s attorney never received a copy of the December 5 hearing transcript or the May 14 briefing schedule. Therefore, the respondent requested additional time to file a brief in support of the Petition to Review. On July 11 we received a Brief in Support of the Petition to Review.
Section 8-43-301(4), C.R.S. 2001, 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. Moreover, due process requires the parties be afforded notice of the briefing schedule Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Here, the record contains a notice of briefing schedule dated May 14, 2002, which is addressed to the respondent’s attorney of record. However, the presumption that a notice was received, 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 by the respondent’s counsel, if credited, establish that the respondent did not receive notice of the opportunity to file a brief in support of its Petition to Review. See Mountain States Telephone and Telegraph Co. v. Department of Labor and Employment, 184 Colo. 334, 520 P.2d 586 (1974). However, we have no authority to accept or reject the assertions on review. See § 8-43-301(8), C.R.S. 2001 (restricting the Panel’s authority concerning factual matters to a review of the ALJ’s findings). Under these circumstances, the matter must be remanded to the ALJ to conduct further proceedings to determine whether we may consider the respondent’s Brief in Support of the Petition to Review.
On remand, the ALJ shall determine whether the respondent’s attorney had adequate notice of the May 14 briefing schedule. If, the ALJ resolves this issue in the negative, a new briefing schedule shall be established which affords the claimant an opportunity to respond to the respondent’s Brief in Support of the Petition to Review. The ALJ shall then take further action as provided by § 8-43-301(5), C.R.S. 2001. However, if the ALJ determines that the respondent had adequate notice of the briefing schedule, the ALJ shall enter an order to that effect and, immediately retransmit the record to us for review without regard to the respondent’s Brief in Support of the Petition to Review.
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 12, 2002 to the following parties:
Francisco Barrientes, 2280 1st Ave., #7, Greeley, CO 80631
Michelle Raimer, Weld County, P. O. Box 758, Greeley, CO 80632
Norman Stimmler, County Technical Services, 1700 Broadway, #1512, Denver, CO 80290
Occupational Healthcare Management, P. O. Box 173682, Denver, CO 80217-3682
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
Patricia Jean Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: A. Hurtado