W.C. No. 4-337-428Industrial Claim Appeals Office.
December 29, 1998
ORDER OF REMAND
The non-insured respondent seeks review of a final order of Administrative Law Judge Atencio (ALJ), insofar as the order assessed a penalty for failure to admit or deny liability pursuant to § 8-43-203(2)(a), C.R.S. 1998. Because we conclude that the ALJ’s order was not properly served on the Subsequent Injury Fund (SIF), we set the order aside and remand for further proceedings.
On March 12, 1998, the ALJ held a hearing concerning the claimant’s request for a penalty based on the respondent’s failure timely to admit or deny liability. On March 30, 1998, the ALJ entered a Summary Order assessing a penalty of $3,340. The order was mailed April 2, 1998, and the respondent filed a request for specific findings of fact and conclusions of law on April 7, 1998.
On April 15, 1998, an Assistant Attorney General filed a “Motion for Amended Order” on behalf of the SIF. The motion alleged that the Summary Order was contrary to law because it did not provide that fifty percent of the penalty be paid to the SIF See § 8-43-203(2)(a).
On April 28, 1998, the ALJ entered an “Amended Order” requiring that fifty percent of the penalty be paid to the SIF. A copy of this order was mailed to all parties, including the Assistant Attorney General representing the SIF.
The ALJ also entered “Specific Findings of Fact, Conclusions of Law and Order” on April 28, 1998. The specific findings again assessed a penalty of $3,340 for failure timely to admit or deny liability, but the specific findings do not provide that fifty percent of the penalty is to be paid to the SIF. A copy of the specific findings was mailed to the parties on April 30, 1998, but the certificate of mailing does not state that the order was mailed to the SIF or the Assistant Attorney General.
On May 4, 1998, the respondent filed a petition to review the ALJ’s specific findings. A copy of this petition was apparently mailed to opposing counsel and the Assistant Attorney General representing the SIF. However, no further pleadings, including notice of the briefing schedule, were ever served on the Assistant Attorney General or the SIF.
Rule of Procedure XI (B)(1), 7 Code Colo. Reg. 1101-3 at 39, requires that whenever a document is filed with the Division of Administrative Hearings “a copy of the document shall be mailed to each party to the claim and attorney(s) of record, if any.” Further, due process requires that parties, as well as their attorneys of record, be provided with notice of critical determinations which trigger procedural deadlines affecting the parties’ substantive rights. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986).
Here, the SIF sought to intervene in the case by requesting the issuance of an amended summary order. The ALJ essentially granted this relief by issuing the amended order on April 28, and mailing a copy of the amended order to the SIF’s counsel of record.
However, two days after the ALJ issued the amended order she mailed the specific findings of fact and conclusions of law. Issuance of the order containing the specific findings triggered the SIF’s obligation to file a petition for review if it was dissatisfied with that order. Section 8-43-301(2), C.R.S. 1998. However, a copy of the specific findings was not mailed to the SIF or to its attorney. Significantly, the specific findings of fact and conclusions of law contained the same defect which the SIF objected to in its request for the amended summary order.
Under these circumstances, the matter must be remanded to the ALJ for reentry of the specific findings of fact and conclusions of law, and mailing of those specific findings to all parties, including the SIF and its counsel. This procedure will afford the SIF the opportunity to file a petition to review the ALJ’s specific findings, if it desires to do so. Further, because the SIF is now a party to this claim, it should be afforded notice of all relevant pleadings and orders, including the briefing schedule. Section 8-43-301(4), C.R.S. 1998.
IT IS THEREFORE ORDERED that the ALJ’s Specific Findings of Fact, Conclusions of Law and Order dated April 28, 1998, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
Copies of this decision were mailed December 29, 1998
to the following parties:
Pauline Ruggio, 1760 W. 85th Ave., #203, Denver, CO 80221
Cindy L. Lofing, 8501 Grant St., Thornton, CO 80229-4800
Subsequent Injury Fund — Interagency Mail
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For Claimant)
Roger Fraley, Jr., Esq., 517 E. 16th Ave., Denver, CO 80203 (For Respondent)
Jill M. M. Gallet, Esq., Assistant Attorney General, 1525 Sherman St., 5th floor, Denver, CO 80203-1760 (For SIF)
By: ___________