W.C. No. 4-790-320.Industrial Claim Appeals Office.
November 12, 2009.
ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated June 16, 2009, that found the claimant’s November/December 2008 injury to be compensable and ordered the respondents to pay for certain medical treatment. We vacate the order and remand for further proceedings.
This matter came on for hearing on June 4, 2009. The claimant was present in person and was represented by her attorney. None of the respondents were present nor were any represented at the hearing. The ALJ noted that an expedited notice was sent to the insurer and it had not been returned by the postal authorities as undeliverable. The ALJ further noted the presumption that the insurer had received notice of the hearing. The ALJ then proceeded to hear the case. The claim was found to be compensable and the respondents were ordered to pay certain medical bills. The respondents filed a motion to vacate the hearing contending that their due process rights had been violated. The ALJ denied the respondents’ motion and the respondents filed a petition to review, which is under consideration here. At the hearing, the ALJ determined that the insurance company had presumptively received notice of the hearing but made no such determination regarding the employer. Tr. at 3-4. The Notice of Hearing contained in the record shows on its face that notice was not given to the employer. On appeal, the respondents argue in part that because the respondent employer was not given notice of the hearing that the employer was denied due process. We agree.
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As a general principle due process requires that parties be notified of pending proceedings affecting their rights. Hall v. Home Furniture Co., (Colo. App. 1996). “The fundamental requisites of due process are notice and the opportunity to be heard.” Hendricks v. Indus. Claim Appeals Office, 809 P.2d 1076, 1077 (Colo. App. 1990). In an administrative hearing turning on questions of fact, “due process requires that the parties be apprised of all the evidence to be submitted and considered, and that they be afforded a reasonable opportunity to confront adverse witnesses and to present evidence and argument in support of their position.” Id.
The Workers’ Compensation Act provides that at least thirty days prior to any hearing, “the office of administrative courts in the department of personnel shall send written notice to all
parties by regular mail.” § 8-43-211(1), C.R.S. 2009 (emphasis supplied). Moreover, the Office of Administrative Courts has promulgated a procedural rule regarding notice of hearings. See Office of Administrative Courts’ Rule of Procedure (OACRP) 11, 1 Code Colo. Reg. 104-3 (2009). OACRP 11 provides as follows:
The OAC shall send a Notice of Hearing to the address on the application. If a Notice of Entry of Appearance or a response to the application is filed, the OAC shall send a Notice of Hearing to the address on the notice or response. If no Notice of Entry of Appearance or no response is filed, the OAC shall send a Notice of Hearing to the respondent’s address given on the application. The Notice of Hearing shall be mailed or delivered within 20 days of the date of the confirmation.
Here the record reflects that no entry of appearance or response was filed. However, the application contains the address of both the insurer and the employer. The Notice of Hearing was sent only to the insurer and not the employer. The rule contemplates that the employer is a party in interest and entitled to separate notice of hearing.
Further, OACRP Rule 23 provides for the situation where a party fails to appear at a hearing. It provides that:
If a party fails to appear at a hearing after the OAC has sent notice of the hearing to that party, a judge shall not enter any orders against the non-appearing party as a result of that hearing unless:
A. The judge finds that the address to which the notice of hearing was sent is the most recent address provided by the non-appearing party to either the OAC or the Division of Workers’ Compensation; or
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B. If no address for the non-appearing party is on file with the OAC or the Division of Workers’ Compensation, the judge finds on the basis of other evidence that:
1. Notice of the hearing was sent to an address at which it is likely to be received by the non-appearing party or the non-appearing party’s authorized representative; or
2. The non-appearing party in fact received notice of the hearing.
C. A copy of a record or other written statement from the OAC or the Division of Workers’ Compensation containing the most recent address provided by the non-appearing party to either of those agencies shall be sufficient to create a rebuttable presumption that the non-appearing party received notice of the hearing.
Here the ALJ at the hearing determined that the insurance company had presumptively received notice of the hearing but made no such determination regarding the employer. Tr. at 3-4. It is apparent that the failure to include the employer on the notice of hearing resulted from administrative error in violation of § 8-43-211(1) and OACRP 11. In addition, the ALJ committed error by not following the procedure outlined in OACRP 23.
We are aware, as suggested by the claimant, that because the employer was insured, the insurer is generally liable for any amounts awarded by the ALJ See § 8-44-105 C.R.S. 2009. However, we are not persuaded that the employer is therefore in the nature of a non-party that could not be adversely affected by a ruling. Statutory and due process protections require that all parties receive notice of administrative proceedings that could result in the deprivation of a significant property interest. Colorado State Board of Medical Examiners v. Palmer, 157 Colo. 40, 400 P.2d 914 (1965) Hall v. Home Furniture Co., 724 P.2d 94 (Colo. App. 1986); Section 8-43-211(1); Stopinsek v. Arrow Graphics; W.C. 4-103-645 (July 10, 1992).
Absent an express waiver or some other clear indication, we presume that the employer was necessarily interested in the outcome of the claim. It follows that a notice of the hearing was an indispensable requisite to the entry of any award against employer. The Notice of Hearing shows on its face that notice was not given to the employer of this hearing. Section 8-43-211(1) provides that the office of administrative courts shall send written notice of the hearing to all parties. In our view, such notice must affirmatively appear of record, unless waived, or the proceedings are void.
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IT IS THEREFORE ORDERED that the ALJ’s order dated June 16, 2009 is vacated and the matter is remanded for further proceedings.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
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ROMONE FORD, AURORA, CO, (Claimant).
KATZSON BROTHERS, INC., Attn: KAREN JOHNSON, DENVER, CO, (Employer).
EMPLOYERS COMPENSATION INSURANCE CO, Attn: CHERRI KESSLER, HENDERSON, NV, (Insurer).
JANICE M GREENING, LLC, Attn: MS JANICE M GREENING, ESQ., ENGLEWOOD, CO, (For Claimant).
HALL EVANS, LLC, Attn: DOUGLAS KOTAREK, ESQ/MEGAN E COULTER, ESQ., DENVER, CO, (For Respondents).
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