W.C. Nos. 4-283-926, 4-240-847Industrial Claim Appeals Office.
February 5, 1999.
ORDER OF REMAND
This matter has been transmitted to us for review of an order of Administrative Law Judge Wheelock (ALJ) dated July 23, 1998. We remand the matter for further proceedings.
On August 11, 1998, the claimant filed a petition to review the ALJ’s order of July 23. The record contains a letter dated November 4, 1998 and addressed to the claimant’s attorney, giving the claimant twenty days from the date of the letter to file a brief in support of the petition to review.
The record was subsequently transmitted to us for review. The appellate record contains the respondents’ opposition brief, but no brief in support of the petition to review, and our acknowledgment letter so notified the parties. Thereafter, we received a letter dated January 14, 1999, from the claimant’s attorney in which he stated that the claimant did not file a brief because she never received a copy of the briefing schedule.
Due process requires that parties receive adequate notice of a critical determination and the effect of their failure to act Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). Although a properly executed certificate of mailing may create a presumption that a notice was received, the presumption 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 of the claimant’s counsel, if credited, establish that he did not receive notice of the opportunity to file a brief in support of her petition to review. Moreover, the record does not contain evidence which directly contradicts these assertions. Under these circumstances, the matter must be remanded to the ALJ to conduct further proceedings concerning the claimant’s allegations.
If on remand, the ALJ determines that the claimant was not afforded notice of the briefing schedule, the ALJ shall issue a new briefing schedule and take further action as contemplated by §8-43-301(4), C.R.S. 1998. If the ALJ determines that the claimant had notice of the briefing schedule, the ALJ shall enter an order to that effect and, after affording the claimant an opportunity to file a petition for review, retransmit the record to us for review.
IT IS THEREFORE ORDERED pursuant to § 8-43-301(9), C.R.S. 1998, that the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL _______________________________ Kathy E. Dean
_______________________________ Dona Halsey
Copies of this decision were mailed February 5, 1999
to the following parties:
Myrna Kay Rankin, 2115 South Drive, Pueblo, CO 81006
Colorado State Psychiatric Hospital, 1600 W. 24th Street, Pueblo, CO 81003-1411
Brandee DeFalco Galvin, Colorado Compensation Insurance Authority (Interagency Mail)
Larry D. Saunders, Esq., 125 W. “B” Street, Pueblo, CO 81003 (For Claimant)
Herbert S. Schiff, Esq., 111 S. Tejon Street, Suite 700, Colorado Springs, CO 80903 (For Respondents)
BY: _______________