W.C. No. 4-410-271.Industrial Claim Appeals Office.
June 13, 2002.
ORDER OF REMAND
This matter has been transmitted to us for review of an order of Administrative Law Judge Henk (ALJ) dated July 3, 2001. We remand the matter for further proceedings.
On July 24, 2001, the respondents filed a petition to review the ALJ’s order. The record contains a letter dated March 26, 2002 and addressed to the respondents’ attorney, which indicated the transcript had been completed and afforded the respondents twenty days from the date of the letter to file a brief in support of the petition to review.
On May 21, 2002, the record was transmitted to us for review. The appellate record contained a Brief in Opposition to the petition to review dated May 2, 2002. However, the record did not contain a brief in support of the petition to review, and our acknowledgment letter dated May 24, 2002 so notified the parties.
Thereafter, we received a Motion to File Brief in Support of Petition to Review from the respondents’ attorney in which the respondents assert that the respondents were unaware that the transcript had been prepared and a briefing schedule had been established until receipt of our acknowledgment letter. The respondents further allege that they found the notice of briefing schedule and transcript in the offices of respondents’ counsel on May 24, 2002 but do not know the date these documents were received. Under these circumstances, they requested leave to file a brief in support of the petition to review.
The claimant has objected to the respondents’ Motion on grounds the respondents have not provided sufficient grounds to permit the late filing of a brief. The claimant also contends that by receipt of the May 2 opposition brief, the respondents were on notice a briefing schedule had been established but took no action to file a brief until June 3, 2002.
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 timely 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).
We have no authority to assess the credibility and sufficiency of the respondents’ factual assertions concerning their lack of notice of the briefing schedule. See § 8-43-301(8), C.R.S. 2001. Under these circumstances, the matter must be remanded to the ALJ to conduct further proceedings. On remand the ALJ shall determine if the respondents were afforded adequate notice of the briefing schedule and whether they have established good cause for the late filing of a brief in support of the petition to review. If the ALJ finds the respondents did not have notice of the briefing schedule or that good cause has been established, the ALJ shall issue a new briefing schedule (which affords the claimant an opportunity to respond to the respondents’ brief in support of the petition to review) and shall take further action as contemplated by § 8-43-301(4), C.R.S. 2001. If the ALJ determines that the respondents had notice of the briefing schedule and good cause has not been established for the late filing of a brief, the ALJ shall retransmit the record to us for review.
IT IS THEREFORE ORDERED pursuant to § 8-43-301(9), C.R.S. 2001, that the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ David Cain
__________________________________ Kathy E. Dean
Copies of this decision were mailed June 13, 2002 to the following parties:
Velia Rodriguez, Box 185, Holyoke, CO 80734
D D Farms, 243 Lakeside Ln., Pierre, S.D. 57501-5212
Jackie Slade, Mid-Century Insurance Company, 7535 E. Hampden Ave., #300, Denver, CO 80231
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For Claimant)
Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Hurtado