W.C. No. 4-230-275Industrial Claim Appeals Office.
August 8, 1996
FINAL ORDER
The claimant seeks review of an order of the Director of the Division of Workers’ Compensation (Director) which granted the respondent’s “Motion to Dismiss for Failure to Prosecute,” and closed the claim pursuant to the Rules of Procedure, Part X(A)(2)(b), 7 Code Colo. Reg. 1101-3 at 37. We affirm.
Initially, we reject the respondent’s argument that the Director’s order is interlocutory and not subject to our review. Under § 8-43-301(2), C.R.S. (1995 Cum. Supp.), we may review an order which “denies a claimant any benefit or penalty.” The Director’s order precludes the claimant from receiving further benefits in the absence of an order reopening the claim under the provisions of § 8-43-303, C.R.S. (1995 Cum. Supp.). See Burke v. Industrial Claim Appeals Office, 905 P.2d 1
(Colo.App. 1994); Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). Consequently, the Director’s order inherently denies further benefits to the claimant, and thus, is a final order for purposes of §8-43-301(2).
To understand our resolution of the claimant’s argument, a brief procedural history is necessary. On October 2, 1995, the respondent filed a “Motion to Dismiss” alleging that the claimant had failed to prosecute the claim. The certificate of mailing indicates that the Motion was sent to claimant’s counsel, but not to the claimant personally. On November 21, 1995, the Director issued an Order directing the claimant to show good cause why the respondent’s Motion should not be granted. The certificate of mailing on the Show Cause Order indicates that the Order was mailed to both the claimant and his attorney. However, neither the claimant nor his attorney responded. Consequently, the Director issued an order dated March 11, 1996, which closed the claim.
The claimant filed a timely petition to review the March 11 order. The claimant argues that the respondent’s failure to send him a copy of the “Motion to Dismiss” is analogous to an insurer’s failure to provide a claimant with personal notice of a Final Admission of Liability. Therefore, the claimant argues that the Director’s order of March 11 violates his right to due process of law and that the Motion to Dismiss should be treated as void. Under the particular facts presented here, we disagree.
As argued by the claimant, the respondent violated the Rules of Procedure in failing to mail a copy of the Motion to Dismiss to the claimant’s address. Specifically, Rule XI(A)(2) states that:
“When no action in furtherance of prosecution has occurred in a claim for at least 6 months, any of the parties may file a petition to close the claim for lack of prosecution.” (Emphasis added).
Further, Rule XI(B)(1), at page 39, requires that:
“Whenever a document is filed with the Division, a copy of the document shall be mailed to each party to the claim and attorney(s) of record, if any.”
Therefore, the respondent was required to mail the Motion to Dismiss to both the claimant and the claimant’s attorney.
Moreover, we agree with the claimant’s argument that due process protections require that all parties receive notice of administrative proceedings and determinations which might result in the deprivation of a significant property interest Colorado State Board of Medical Examiners v. Palmer, 157 Colo. 40, 400 P.2d 914 (1965). This includes administrative proceedings which require the claimant to act affirmatively to preserve his right to further benefits. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). Because the failure to respond to a Final Admission of Liability forecloses a claimant’s entitlement to further benefits absent an order reopening the claim, the filing of a Final Admission inherently involves the potential deprivation of a significant property interest. Accordingly, in Bowlen v. Munford, ___ P.2d ___ (Colo.App. No. 95CA1285, May 2, 1996), the court held that where the evidence indicated that the claimant did not receive the insurer’s Final Admission of Liability and was not otherwise apprised of its existence, mailing of the Final Admission to his last known place of employment was insufficient to advise the claimant of the effect of his failure to respond, or to satisfy the notice requirements of Rule XI(B)(1).
However, not every technical violation of Rule XI(B)(1) results in a deprivation of due process. Rule X(A)(2)(a) states that:
“[F]ollowing receipt of a request to close the claim for lack of prosecution, the director will issue an order requiring the parties to show cause why the request should not be granted. A response to such order shall be filed within 30 days of the date the order was mailed.”
Subsection X(A)(2)(b) adds that “if no response is filed within 30 days of the date of the order was mailed, the claim shall be automatically closed.” Thus, unlike the filing of a Final Admission of Liability, the filing of a Motion to Dismiss for failure to prosecute does not require any affirmative action by a claimant, and there is no consequence for a claimant’s failure to respond to the Motion. Rather, the filing of the Motion to Dismiss triggers the Director’s duty to issue a show cause order, and it is the claimant’s failure to respond to the Show Cause Order which establishes grounds to close the claim. It follows that in the absence of the Director’s Show Cause Order, this claim would not have been subject to closure under Rule X(A)(2).
Here, neither the claimant nor his counsel deny receipt of the Show Cause Order. The Director’s Show Cause Order expressly notified the claimant of the respondent’s motion to close the claim, and the specific grounds relied upon by the respondent. The Show Cause Order also explicitly notified the claimant that his claim would be automatically closed if he failed, within the following 30 days, to file a written statement which described the efforts he had made or was making to pursue the claim. Thus, the Director’s Show Cause Order adequately notified the claimant of his need to affirmatively act to avoid closure of the claim, and the respondent’s violation of Rule XI(B) did not deprive the claimant of due process.
Our conclusion is buttressed by the undisputed fact that claimant’s counsel received the Motion to Dismiss, and the claimant’s admission that the failure to respond to the Motion was the result of a “miscommunication between claimant and counsel,” and not the respondent’s violation of Rule XI(B) Cf. Dickman v. DeMoss, 660 P.2d 1 (Colo.App. 1982) Knox v. Knox, 517 P.2d 1350 (Colo.App. 1973) (not selected for publication) (service of order upon the attorney of record is deemed service upon the client); see also Mountain States Telephone and Telegraph Co. v. Dept. of Labor and Employment, 184 Colo. 334, 520 P.2d 586 (1974) (where a party is represented by counsel, due process requires that the attorney of record be provided with notices since a party is entitled to rely on his attorney).
IT IS THEREFORE ORDERED that the Director’s order dated March 11, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify orvacate this Order is commenced in the Colorado Court of Appeals,2 East 14th Avenue, Denver, CO 80203, by filing a petition forreview with the court, with service of a copy of the petitionupon 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. (1995 Cum.Supp.).
Copies of this decision were mailed August 8, 1996 to the following parties:
John Pete Gabaldon, 230 W. 11th Ave., Brighton, CO 80601
Weyerhaueser Recycling, 5135 Race Court, Denver, CO 80216
Crawford Co., Attn: Lissa Pierce, P.O. Box 6502, Englewood, CO 80155
Cindy Slevin, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
Greg Russi, Esq., 1900 Grant St., #1030, Denver, CO 80203 (For the Claimant)
BY: _______________________