W.C. No. 4-167-687Industrial Claim Appeals Office.
January 12, 1996
FINAL ORDER
Attorney, Victor C. Devereaux (Mr. Devereaux) seeks review of an order of Administrative Law Judge Stuber (ALJ Stuber) which ordered him to pay attorney fees, and an order issued by Administrative Law Judge Rumler (ALJ Rumler) which imposed a penalty for Mr. Devereaux’s failure to pay the attorney fees. We dismiss the appeal of ALJ Stuber’s order, set aside the order of ALJ Rumler, and remand for further proceedings.
On November 16, 1993, ALJ Stuber ordered Mr. Devereaux to pay the respondents’ attorney fees in the amount of $3,257.39. Mr. Devereaux timely appealed the November 16 order. After the matter was briefed, ALJ Stuber issued a Supplemental Order dated February 22, 1994, which contained additional findings of fact and reinstated the award of attorney fees. Mr. Devereaux did not file a petition to review the Supplemental Order.
The respondents subsequently filed a motion for the imposition of penalties. An evidentiary hearing was set for May 30, 1995, before ALJ Rumler. However, neither Mr. Devereaux nor a representative in his behalf attended. Based upon the evidence presented on May 30, ALJ Rumler found that Mr. Devereaux failed to comply with the February 22 Supplemental Order, and also determined that there was no evidence of mitigation. Consequently, pursuant to § 8-43-304(1), C.R.S. (1995 Cum. Supp.), ALJ Rumler ordered Mr. Devereaux to pay a penalty at the rate of $500 per day for 456 days, totalling $228,000. Mr. Devereaux timely appealed the penalty order.
I.
Section 8-43-301(6), C.R.S. (1995 Cum. Supp.), provides that a party dissatisfied with a supplemental order must file a petition to review within twenty days of the mailing of the order. Because ALJ Stuber’s Supplemental Order was issued in response to Mr. Devereaux’s Petition to Review the November 16 order, and the Supplemental Order addressed the issues raised in Petition to Review, Mr. Devereaux was required to file a petition to review the Supplemental Order to preserve his argument on appeal. See Michalski v. Industrial Claim Appeals Office, 757 P.2d 1146
(Colo.App. 1988).
Since Mr. Devereaux did not file a petition to review the Supplemental Order, the Supplemental Order is final absent a petition to reopen. Consequently, we lack jurisdiction to consider whether ALJ Stuber erred in ordering Mr. Devereaux to pay the respondents’ attorney fees. See Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
II.
With regard to ALJ Rumler’s order, Mr. Devereaux’s appellate brief contains numerous assertions of mitigating factors pertaining to his failure to comply with the Supplemental Order. In part, Mr. Devereaux states that he has been suffering from a progressive, debilitating medical condition for the last two years, which has necessitated several surgeries, including a total hip replacement on May 17, 1995. He also asserts that after the May 17 surgery, he experienced complications which necessitated his transfer to the cardiac unit of the hospital and later to a rehabilitation nursing home, where he was scheduled to be released on May 30, 1995. Further, Mr. Devereaux states that he was “in no condition to assist in [his] defense.”
Fundamental due process require that parties be afforded notice and a reasonable opportunity to confront adverse witness, and present evidence and argument in support of their position. Puncec v. City County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). The opportunity to be heard must also be granted at a meaningful time and in a meaningful manner. In re Marriage of Goellner, 770 P.2d 1387 (Colo.App. 1987).
Mr. Devereaux’s appellate brief contains assertions which, if credited, arguably establish that he did not have a reasonable opportunity to defend the claim for penalties. Specifically, as we understand Mr. Devereaux’s argument, he is asserting that he was unable to attend the May 30, 1995, due to circumstances beyond his control, namely his medical condition.
Because these assertions are factual in nature, we cannot accept or reject them on appeal. See § 8-43-301(8), C.R.S. (1995 Cum. Supp.) (restricting the Panel’s authority concerning factual matters to a review of the ALJ’s findings). Furthermore, unless the record contains evidence which directly contradicts the Mr. Devereaux’s pertinent factual assertions, it is improper for the ALJ to summarily reject them without a hearing. See Pueblo School District No. 60 v. Clementi, 776 P.2d 1152
(Colo.App. 1989); Trujillo v. Industrial Commission, 735 P.2d 211
(Colo.App. 1987).
Here, the record does not contain evidence which directly contradicts Mr. Devereaux’s appellate assertions. In fact, the record reflects that Mr. Devereaux’s office reported to respondents’ counsel that Mr. Devereaux was at an out-of-town doctor’s appointment at the time of the hearing. (Tr. p. 5). However, ALJ Rumler did not make any specific findings concerning Mr. Devereaux’s factual allegations; rather, she implicitly rejected the allegations by transmitting the matter to us for review without issuing a supplemental order. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).
Under these circumstances, it is necessary to remand the matter to ALJ Rumler to conduct further proceedings concerning Mr. Devereaux’s factual assertions. Cf. Loeffler v. Reeder, W.C. No. 2-940-761, September 14, 1992 Stopinsek v. Arrow Graphics, W.C. No. 4-103-645, July 10, 1992 (cases remanded for factual findings resolving appellants’ assertions that they did not receive notice of the hearing); cf. James v. Brookhart Lumber Co.,727 P.2d 1119 (Colo.App. 1986) (workers’ compensation proceeding is not the proper forum for determining whether a party was under a legal disability for purposes of tolling statute of limitations). If on remand ALJ Rumler determines that the claimant was unable to attend the hearing due to circumstances beyond his control, and thus, was deprived of due process, a new hearing shall be conducted on the claim for penalties. If ALJ Rumler determines that Mr. Devereaux was not deprived of due process, she shall make specific findings of fact in support of her determination, and recertify the record to us for further review.
In view of our disposition, it is premature to consider Mr. Devereaux’s remaining arguments.
IT IS THEREFORE ORDERED that Mr. Devereaux’s appeal of the order for the payment of attorney fees is dismissed with prejudice, for failure to file a timely petition to review the Supplemental Order dated February 22, 1994.
IT IS FURTHER ORDERED that ALJ Rumler’s order dated June 1, 1995, is set aside and the matter is remanded to ALJ Rumler for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed January 12, 1996 to the following parties:
Nicholas J. Lasorella, 6390 Garlock Way, Colorado Springs, CO 80918
Navare Biomedical Services, 4815 List Dr., Ste. 111, Colorado Springs, CO 80919-3340
Victor C. Devereaux, Esq., 400 Vega St., P.O. Box 40, San Luis, CO 81152
Continental Insurance Company, % Continental Loss Adj., P.O. Box 17930, Denver, CO 80217-0930
Bradley D. Tucker, Esq., Quebec Centre II, Ste. 300, 7400 E. Caley Ave., Englewood, CO 80111-6714 (For the Respondents)
Pattie J. Ragland, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
Dale A. Gerlach, Esq., 228 N. Cascade, Ste. 200, Colorado Springs, CO 80903 (For the Claimant)
BY: _______________________