W.C. Nos. 4-506-753, 4-059-342.Industrial Claim Appeals Office.
December 5, 2005.
FINAL ORDER
The respondents seeks review of an order dated August 2, 2005 of Administrative Law Judge Mattoon (ALJ) that ordered the respondents to pay disfigurement benefits based on a submitted photograph. We affirm.
The claimant filed a request for a disfigurement award along with dated and signed photographs showing the alleged disfigurement as a result of the admitted industrial injury. This request is dated July 28, 2005. The ALJ entered an order dated August 2, 2005 finding that it appears an award of $1,000 was appropriate for the claimant’s disfigurement. The order provided that the respondents shall, within thirty days of the date of the order either admit and pay to the claimant the $1,000 or file an application for hearing on the issue of disfigurement benefits. The respondents did neither. Rather, they filed this petition to review.
The respondents contend that the ALJ lacked jurisdiction to entertain the claimant’s request for a disfigurement award because the claim had been closed by a final admission of liability (FAL), which had not been objected to. The respondents attached a copy of an admission dated July 29, 2002 to their brief and asserted that the claimant took no action to object to it and accordingly the claim was automatically closed.
The claimant argues that at the time the order was entered there existed no issue of fact related to respondents’ alleged administrative closure of the claim although such an argument could have been appropriately presented at a hearing. The claimant argues that the respondents should not now be permitted to substitute statements by counsel or attachments to their brief as evidence to be considered. The claimant argues that there being no evidence in the record on the issue of closure, we are bound by the ALJ’s order on disfigurement if supported by substantial evidence.
The closure of issues by the filing of an FAL is governed by section 8-43-203(2)(b)(II), C.R.S. 2005. Section 8-43-203(2)(d), C.R.S. 2005, provides that “once a case is closed pursuant to subsection (2), the issues closed may only be reopened pursuant to section 8-43-303.” Section 8-43-303, C.R.S. 2005, establishes the time limits and conditions for reopening.
We have previously held that failure to raise the argument that an issue was closed by the filing of an FAL constitutes an affirmative defense which is waived if not timely raised. We analogized the issue of closure to such affirmative defenses as res judicata and “other procedural defenses which serve to bar a claim.” See Stubbs v. Choice Hotels International,
W.C. No. 4-229-627 (November 31, 2003); Winters v. Cowen Transfer and Storage, W.C. No. 4-153-716 (December 28, 1995), citin Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977) (statute of limitations for filing claim is not jurisdictional and may be waived if not timely raised). See als Crocker v. Colorado Department of Revenue, 652 P.2d 1067 (Colo. 1982). We perceive no reason to depart from our previous decisions. The respondents’ closure argument was not raised before the ALJ. Thus, we conclude the argument was waived.
Further, our review is restricted to the record before the ALJ, and the factual assertions made on appeal by respondents regarding closure may not substitute for evidence which is not in the record. See City of Boulder v. Dinsmore, 902 P.2d 925
(Colo.App. 1995) ; Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo.App. 1987).
The respondents further argue that pursuant to Rule of Procedure VIII(D)(2), 7 Code Colo. Reg. 1101-3, they have ten days to respond and the ALJ entered her order on disfigurement before the passage of the ten days, depriving them of due process. We disagree.
The fundamental requirements of due process are notice and an opportunity to be heard. Due process contemplates that the parties will be apprised of the evidence to be considered, and afforded a reasonable opportunity to present evidence and argument in support of their positions. Inherent in these requirements is the rule that parties will receive adequate notice of both the factual and legal bases of the claims and defenses to be adjudicated. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo.App. 1990).
The order of the ALJ provided that the respondents could either pay the claimant the amount found in the order or file an application for hearing on the issue of disfigurement within thirty days. This is consistent with Rule of Procedure VIII(S), 7 Code Colo. Reg. 1101-3. We perceive no violation of the respondents’ right to due process.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 2, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Tom Schrant
Yong O. Yim, Herondon, VA, Avalanche Industries, c/o CEH Metal Tech, Englewood, CO, Insurance Company of the West, San Diego, CA, Pattie J. Ragland, Esq., Colorado Springs, CO, (For Claimant).
Karen R. Wells, Esq. and Allison R. Ailer, Esq., Denver, CO, (For Respondents).