W.C. No. 4-823-822.Industrial Claim Appeals Office.
July 11, 2011.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Harr (ALJ) dated February 16, 2011, that found the claimant had suffered a compensable injury and ordered the respondent to pay certain benefits. We affirm.
The ALJ made the following pertinent findings of fact. The respondent is a corporation that engages in the business of renting out party equipment and supplies. Thomas Wright is the president of the corporation. The respondent failed to cover its employees for workers’ compensation injuries on March 9, 2010. On March 5, 2010 the respondent hired the claimant to work as a laborer. The claimant sustained injuries in a motor vehicle accident on March 9, 2010. At the time of the accident, the claimant was a passenger in the employer’s van driving to a location to set up equipment for an event.
The ALJ concluded that the claimant had proven by a preponderance of the evidence that he sustained an injury arising out of the course and scope of his employment and awarded certain benefits. The respondent appeals that decision.
We first note that the respondent did not file a brief in support of the petition to review the ALJ’s Order. Therefore, the effectiveness of our review is limited. See Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986). The respondent filed a petition to review setting forth three allegations of error.
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I.
The respondent first contends that it was not notified “properly” of the date of the hearing. There were two hearings held on this matter. The respondent does not identify the hearing for which he was not properly noticed.
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).
Here, the claim first was set for hearing on December 23, 2010. There initially was no appearance on behalf of the respondent at that hearing. Tr. (12/23/10) at 3. However, Mr. Thomas Wright did appear late at the hearing. Tr. (12/23/10) at 15. At that point the ALJ outlined the issues for Mr. Wright and even summarized the testimony that had taken place. Tr. (12/23/10) at 15-18. Mr. Wright was given an opportunity to prepare for and cross-examine the claimant and the hearing went forward. Tr. (12/23/10) at 19-20. Mr. Wright was then given an opportunity to present evidence. Tr. (12/23/10) at 25-28. Mr. Wright explained that the respondent had been improperly identified as WGSP LLC and Wright Group Event Services, LLC. Mr. Wright testified that that the two identified employers do not exist and that the proper name was Wright Group Event Services, Inc. Mr. Wright identified himself as the president of that company. Tr. (12/23/20) at 26-29. Mr. Wright argued that he was just representing Wright Group Event Services, Inc., which had never been properly served. Tr. (12/23/10) at 34.
The ALJ agreed that the pleadings should be amended to identify Wright Group Event Services, Inc. as the respondent and that the pleadings should be reserved on Mr. Wright. Tr. (12/23/10) at 36-38. The hearing was reset for February 14, 2011. The record reflects a Notice of Hearing with a certificate of mailing showing Wright Group Event Services, Inc. with the correct address as testified to by Mr. Wright. Tr. (12/23/10) at 29. However, there was no appearance for the respondent at the February 14, 2011 hearing. Tr. (2/14/11) at 3-5.
A properly executed certificate of mailing creates a presumption that a notice was timely received. Olsen v. Davidson, 142 Colo. 205, 350 P.2d 338 (1960); Campbell v. IBM Corp., 867 P.2d 77 (Colo. App. 1993). The presumption can be overcome Allred v. Squirrel, 37 Colo. App. 84, 543 P.2d 110 (1975). However, the respondent has not denied receiving the notice of the February 14, 2011 hearing nor has he explained what was not “proper” about the notice. Consequently, we are not persuaded by this argument.
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A party’s right to procedural due process is met if the party is provided with notice and an opportunity to be heard Pub. Utils. Comm’n v. Colo. Motorway, Inc., 165 Colo. 1, 10, 437 P.2d 44, 48 (1968). The essence of procedural due process is fundamental fairness. City County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). In our view, the ALJ here scrupulously protected the respondent’s procedural due process rights at the first hearing and the respondent was even given another chance to present his case at a second scheduled hearing. We perceive no violation of the respondent’s procedural due process rights.
II.
The respondent next contends that the claimant was not one of its employees. The respondent argues that it has no record of the claimant as an employee.
To prove a compensable injury, the claimant had the burden to prove by a preponderance of evidence that his condition arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000). Proof by a preponderance of the evidence requires the proponent to establish that the existence of a “contested fact is more probable than its nonexistence.” Page v. Clark, 197 Colo. 306, 592 P.2d 792, 800 (1979). The question of whether the claimant met the burden of proof is one of fact for determination by the ALJ.
On review, the issue is whether the ALJ’s findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination. Section 8-43-301(8), C.R.S.; F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). Under this standard, we are required to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
Here the claimant testified that he was employed by the respondent and that while so employed he suffered a compensable injury. Tr. (12/23/10) at 9-11. Mr. Wright acknowledged that there was an accident as described by the claimant and that the claimant had been paid for work for the respondent. Tr. (12/23/10) at 29-30. Moreover, the claimant introduced into evidence medical records and photographs consistent with his description of the accident. In our view the claimant’s testimony, the documentary evidence and even the testimony of Mr. Wright constitutes substantial evidence establishing that the claimant was an employee of the respondent.
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III.
The respondent next contends that the claimant was not a citizen of the United States and had no authority to work in this country. We are not persuaded that this contention establishes error in awarding benefits under Colorado’s Workers Compensation Act (Act) See Champion Auto Body v. Industrial Claim Appeals Office 950 P.2d 671 (Colo. App. 1997) (under the Act, the definition of an employee entitled to coverage under the Act includes “aliens” without distinguishing between legal and illegal aliens); see also, §§ 8-40-202(1)(b) and 8-40-301, C.R.S.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 16, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D Baird
_______________________ Dona Rhodes
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JOSE ANGEL TALAMANTES, DENVER, CO, (Claimant).
WRIGHT GROUP EVENT SERVICES, INC., Attn: THOMAS S. WRIGHT, DENVER, CO, (Employer).
ROBERT M. MAES, ATTORNEY, Attn: ROBERT M. MAES, ESQ., DENVER, CO, (For Claimant).
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