W.C. No. 4-524-717Industrial Claim Appeals Office.
April 13, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which determined the claim is closed because the claimant failed to file a timely objection to a Final Admission of Liability (FAL) and did not file a timely notice and proposal to select a Division-sponsored independent medical examination (DIME) physician. We affirm.
The essential facts are undisputed. The claimant sustained a compensable injury in December 2001. The claimant was placed at maximum medical improvement in February 2003, and received a 1 percent upper extremity rating which converted to a 1 percent whole person rating. On May 23, 2003, the respondents filed an FAL admitting for the scheduled rating. The FAL was mailed to claimant’s counsel and to the claimant at 11715 SW 18th #307 Miami, Florida 33175.
On August 20, 2002, claimant’s attorney had mailed a letter notifying the Division of Workers’ Compensation (Division) and respondents that the claimant’s “new address” was P.O. Box 160073, Miami, Florida 33116-0073. Despite the fact that the FAL was mailed to an incorrect address, the claimant admitting receiving it “on or about May 28, 2003,” and claimant’s counsel received it on May 28. However, the claimant did not file an objection to the FAL or a notice and proposal to select a DIME until Monday, June 25, 2003. The objection and notice and proposal were not filed until June 25 because “claimant’s attorney’s staff failed to input the deadline into claimant’s attorney’s docketing system.”
On June 26 the claimant filed a motion requesting the Division to accept the “late” objection and notice and proposal. The claimant argued the respondents failed to comply with § 8-43-203(2)(b)(II), C.R.S. 2003, and Rule of Procedure XI (B)(1), 7 Code Colo. Reg. 1101-3 at 39, because the FAL was not mailed to the claimant’s correct address. The respondents objected to the claimant’s request and argued the claim was closed because the claimant failed to comply with the jurisdictional requirements to file an objection to the FAL and request a DIME within 30 days of the date the FAL was mailed.
On July 17, 2003 prehearing ALJ (PALJ) Fitzgerald granted the claimant’s motion on grounds that the FAL was not mailed to the claimant at the address designated on August 20, 2002. The respondents appealed this decision, and on December 15, 2003, the ALJ “overturned” the PALJ’s ruling. The ALJ held that because the claimant received actual notice of the FAL within the time necessary to file an objection and notice an proposal, the incorrect address did not vitiate the FAL nor excuse the claimant’s failure to comply with the statutory deadlines for objecting and requesting a DIME. Moreover, the ALJ found the reason for the late filing was not the defect in mailing, but the “docketing error” of claimant’s counsel’s staff.
On review the claimant contends the respondents “violated” §8-43-203(2)(b)(II) and Rule XI(B)(1) because the FAL was mailed to an incorrect address. The claimant argues that under these circumstances the time for filing the objection and notice and proposal to select a DIME physician should be measured from the date the FAL was actually received (May 28, 2003). Measuring in this manner would render the objection and notice and proposal timely. We disagree.
Section 8-43-203(2)(b)(II) provides that an FAL will become final unless within “thirty days after the date of the final admission” the claimant contests the FAL in writing. Section 8-42-107.2(2)(a)(I)(A) and (2)(b), C.R.S. 2003, provide that the claimant must file a notice and proposal to select a DIME within thirty days of the date of mailing of the FAL or the “authorized treating physician’s findings and determinations shall be binding.” If the claimant does not timely contest the FAL in writing the claim will be closed as to issues admitted in the FAL Peregoy v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0557, January 29, 2004); Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821 (Colo.App. 2001). Similarly, if the claimant fails to file a notice and proposal in a timely fashion the opportunity to do so is lost. Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003); Meszler v. Freedom Communications Inc. d/b/a The Gazette, W.C. No. 4-488-976 (July 22, 2003).
Nothing in § 8-43-203(2)(b)(II), § 8-42-107.2(2) or Rule XI (B)(1) expressly provides that an FAL must be served by mail at the claimant’s home address. However, our courts have held that such a requirement is implicit because it effectuates the legislative purpose of insuring the quick and efficient delivery of benefits and is reasonably designed to provide the claimant notice of the FAL and provide an opportunity to object. Bowlen v. Munford, 921 P.2d 59 (Colo.App. 1996).
However, it does not follow that the respondents’ error in addressing the FAL vitiates its effectiveness if the claimant actually receives the FAL in sufficient time to file a timely objection. Generally, due process requires notice and an opportunity to be heard in a meaningful manner Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Where a party receives actual notice of a proceeding and is afforded a reasonable opportunity to participate, non-jurisdictional errors in the statutory notice process do not nullify the administrative determination. Wunder v. Department of Revenue, 867 P.2d 178 (Colo.App. 1993) (despite Department of Revenue’s violation of statute requiring 10 days written notice of change in license revocation hearing site, no error occurred where claimant received oral notice of change on day of hearing and there was no evidence change prejudiced his ability to participate in hearing); Shumate v. Department of Revenue, 781 P.2d 181
(Colo.App. 1989) (even if notice of license revocation not properly served, the claimant’s right to notice was not affected because he appeared at revocation hearing and participated).
We decline to treat the judge-made rule that an FAL be served at the claimant’s home address as jurisdictional in nature. Nothing in the statute or rules suggests that any defect in addressing the FAL is of such magnitude that failure to comply automatically nullifies the effect of the FAL. See EZ Building Components Mfg., LLC v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA2059, June 5, 2003) (statutory requirement that notice of cancellation be served on Division and insurance agent by certified mail was not jurisdictional where statute did not treat requirement as jurisdictional and actual notice was provided to Division and agent). As noted in the EZ Building Components
decision, “the concept of substantial compliance has been applied to various notice requirements in workers’ compensation proceedings even when those requirements otherwise appear to be mandatory.” Slip op. at 3, and cases cited therein.
It follows that the ALJ correctly held the claimant’s receipt of actual notice was sufficient to trigger her obligation to object to the FAL and request a DIME if she so desired. The claimant concedes that she actually received the FAL on or about May 28, which was more than enough time to object and request a DIME by the deadline of Friday, June 22, 2003 Cramer v. Industrial Claim Appeals Office, 885 P.2d 318 (Colo.App. 1994) (no due process violation occurs where party fails to use an existing process to protect its rights). Indeed, the ALJ found the failure to object and request a DIME was not caused by mailing the FAL to the incorrect address, but was instead the result of the “docketing” problem at the office of the claimant’s counsel. (Finding of Fact 9, Conclusion of Law 8). Because there was actual notice which afforded the claimant a meaningful opportunity to lodge an objection to the FAL and request a DIME within the statutory time limits, we reject the argument that time for filing such requests was “tolled.”
We have considered the other decisions cited by the claimant. Those cases, like Bowlen v. Munford, involve fact patterns where the failure to mail the FAL to the claimant’s home address resulted in deprivation of notice that an FAL had been issued. Obviously, in those situations it would violate due process to close the claim based on the FAL. Thus, the cases cited by the claimant are factually and legally distinguishable from this case.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 15, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on April 13, 2004 by A. Hurtado.
Yasmin Duran, P. O. Box 160073, Miami, FL 33116-0073
Russell Stover Candies, 2200 Stover Ave., Montrose, CO 81401-4848
Sentry Insurance Company, P. O. Box 29466, Phoenix, AZ 85038-9466
J. Keith Killian, Esq. and Amy K. Eaton, Esq., P. O. Box 4859, Grand Junction, CO 81502
Gary Truman, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)