W.C. No. 4-203-497Industrial Claim Appeals Office.
July 18, 1995
ORDER OF REMAND
This matter has been transmitted to the Industrial Claim Appeals Panel for review of an order of Administrative Law Judge Erickson (ALJ) which determined that the respondents were the claimant’s co-employers at the time the claimant sustained a compensable back injury, and held the respondents jointly liable for benefits awarded to the claimant. We set aside the order concerning the liability of Alfonso J. Sanchez and remand the matter for further proceedings.
The ALJ’s order was based upon the evidence presented at a hearing on September 13, 1994, which neither respondent attended. However, the ALJ determined that both respondents “were properly notified of the hearing and were, in addition properly served with subpoenas directing them to testify at the hearing.”
I.
On appeal, Alfonso J. Sanchez (Sanchez) contends that he did not receive notice of the September 13 hearing, and therefore, argues that due process entitles him to a new hearing. We conclude that the record does not support the ALJ’s determination that Sanchez had notice of the hearing, and consequently, we agree that Sanchez is entitled to a new hearing.
The claimant filed two workers’ compensation claims in connection with the compensable injury. The claim against Sanchez listed the employer’s address as “5681 Pierce Street, #203, Arvada, CO 80003.” The claim against Carpet Express (also identified on the form as J J Decorators Inc.) listed the employer’s address as “7171 North Federal Boulevard, Westminster, CO 80030.” Thereafter, the claimant used these same addresses on his May 1994 Application for Hearing and Notice to Set by Telephone.
However, the certificate of mailing on the notice of the September 13 hearing does not reflect mailing to “Alfonso J. Sanchez.” Rather, the Notice of Hearing indicates that it was only mailed to the claimant, his attorney, and “J J Decorators, Inc., 7171 N. Federal Blvd., Westminster, CO 80030.” Under these circumstances, the record does not support a finding that Sanchez received notice of the hearing by a proper mailing of the written Notice of Hearing. Compare Olsen v. Davidson, 142 Colo. 205, 350 P.2d 338 (1960) (the law presumes that mail is received by its addressee “when there is proper evidence of its mailing to a named person at a correct address, with adequate prepaid postage”); Allred v. Squirrell, 37 Colo. App. 84, 543 P.2d 110 (1975); (a properly executed certificate of mailing may create a presumption that a notice was received).
Furthermore, the ALJ’s determination that Sanchez was properly subpoenaed to attend the hearing is not consistent with applicable law. Section 8-43-207(1)(a), C.R.S. (1994 Cum. Supp.), provides that subpoenas issued for witnesses “shall be served in the same manner as subpoenas in the district court.” See also Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). C.R.C.P. 45(c) states that:
“[S]ervice of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person . . . . Service is also valid if the person named in the subpoena has signed a written admission or waiver of personal service.”
Here, the ALJ found, and the record reflects that service of the subpoena on Sanchez is purported to have been accomplished by serving a copy on the owner of Carpet Express, John Vannoy (Vannoy). See Conclusions of Law. Therefore, as a matter of law the service of process was not sufficient to establish proper service on Sanchez.
Consequently, due process of law requires that Sanchez be afforded a new hearing. Puncec v. City County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970); Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). Therefore, we must set aside the ALJ’s order concerning the liability of Sanchez and remand for a new hearing which affords Sanchez adequate, advance notice at his correct address. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.).
II.
With regard to the respondent, Carpet Express, we note that the record contains correspondence dated October 14, 1994, from Vannoy to the ALJ contesting the ALJ’s determination that the claimant was an employee of Carpet Express. Because the correspondence requests “a petition to review this case,” we construe the correspondence as a petition to review within the meaning of § 8-43-301(2), C.R.S. (1994 Cum. Supp.); Rendon v. United Airlines, 881 P.2d 482 (Colo. App. 1994); Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970).
However, no briefing schedule has been established with regard to Vannoy’s appeal. Therefore, the matter must be remanded to afford the parties an opportunity to file written arguments. Section 8-43-301(4), C.R.S. (1994 Cum. Supp.).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 3, 1994, is set aside insofar as it requires Alfonso J. Sanchez to pay workers’ compensation, and the matter is remanded for a new hearing concerning the liability of Alfonso J. Sanchez.
IT IS FURTHER ORDERED that pursuant to § 8-43-301(9), C.R.S. (1994 Cum. Supp.), the matter is remanded to establish a briefing schedule concerning the petition for review by Carpet Express. Thereafter, the matter shall be retransmitted to us, in accordance with § 8-43-301(4), for review of the October 3, 1994 order concerning the liability of Carpet Express.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Dona Halsey
____________________________________ Kathy E. Dean
Copies of this decision were mailed July 18, 1995 to the following parties:
Christopher M. Duran, 1428 Cannon St., Louisville, CO 80027
Alfonso J. Sanchez, 881 Del Norte, Denver, CO 80221
John Vannoy, Carpet Express, 7171 N. Federal Blvd., Westminster, CO 80030
Joseph W. Ruppert, Esq. and Glen B. Goldman, Esq., 950 S. Cherry St., #1400, Denver, CO 80222 (For the Claimant)
Dennis H. Gunther, Esq., 4800 Wadsworth Blvd., #118, Wheat Ridge, CO 80033 (For Respondent Sanchez)
Division of Workers’ Compensation, Employer Compliance Unit, Attn: David Schutzenhofer
BY: _______________________