W.C. No. 4-813-382.Industrial Claim Appeals Office.
October 22, 2010.
ORDER
The employer seeks review of an order of Administrative Law Judge Friend (ALJ) dated June 7, 2010, that found the claim compensable and directed the employer to pay certain benefits. We vacate the order and remand for further proceedings.
A hearing was held on May 5, 2010. The employer did not appear for the hearing. The employer filed a motion for a new hearing. The ALJ in an order dated June 3, 2010 denied the motion for a new hearing. The ALJ entered an order on the merits dated June 7, 2010. In the June 7, 2010 order the ALJ found the claim to be compensable and awarded benefits.
The employer filed a Petition to Review the June 7, 2010 order contending that a notice of hearing as provided for under § 8-43-211 C.R.S., was never provided to the employer by the Office of Administrative Courts.
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.
Section 8-43-211(1) C.R.S., 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 or electronic mail or by facsimile and that the notice shall give the time, date, and place of the hearing. Moreover, the Office of Administrative Courts has promulgated a procedural rule regarding notice of hearings. See Office of
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Administrative Courts’ Rule of Procedure (OACRP) 11, 1 Code Colo. Reg. 104-3 (2010). 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 Notice of Hearing was sent to the employer’s attorney but not to the employer. The rule contemplates that the employer is a party in interest and entitled to separate notice of hearing Ford v. Katzson Brothers Inc., W.C. No. 4-790-320 (November 12, 2009).
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
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: 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 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.
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Here there is no transcript of the hearing. Therefore it is impossible to tell what steps the ALJ took at the hearing to assure that proper notice was sent. However, inasmuch as claimant failed to procure a transcript we presume the regularity of the proceedings at the hearing. See Hanna v. Print Expediters 77
P.3d 863 (Colo. App. 2003) (burden is on appellant to provide record justifying reversal, and absent such a record, we presume the regularity of the trial court proceedings).
Here, in denying the employer’s request for a new hearing, the ALJ noted that the Notice was sent to both attorneys of record. The Notice gave the date and time of the hearing and stated that the hearing would be held at the “Office of Administrative Courts located at 633 17th Street, 14th
Floor, Denver Co 80202.” The claimant appeared at the hearing and after waiting twenty minutes for the respondent to appear the hearing commenced. The hearing concluded at 9:02 a.m. The respondent and its attorney appeared at 9:12 a.m., after the claimant and his attorney had left the courtroom. The ALJ accepted the factual allegation contained in the respondent’s motion for a new trial. The employer had mistakenly gone to the 13th floor where pre-hearing and settlement conferences are held. The employer was told by a clerk at the desk to wait for the hearing. The employer’s attorney discovered the error, and went to the 14th floor after 9:00 a.m. The employer asked for a new hearing to call a witness and show evidence that the claimant was not an employee of the employer but was an independent contractor. However, the employer had not filed a response to the application for hearing and the witness would therefore not be permitted to testify in the employer’s case in chief. The ALJ found that the employer had failed to show good cause for an additional or new hearing to take the testimony of the employer’s witness. Therefore the ALJ dismissed the respondent’s motion for a hew nearing.
The claimant responded to the employer’s Motion to Request New Hearing by contending that the employer’s attorney did not enter his appearance in the case and probably did not receive a copy of the Notice of Hearing. The claimant argues that if the employer’s attorney had filed an entry of appearance as required he would have received the Notice of Hearing which provides the address and floor of the hearing. The claimant concludes that it was the fault of the employer’s attorney and not his or OAC’s fault.
We disagree with the claimant. OAC Rule 11 provides that if there is no response filed and no Notice of Entry of Appearance the OAC shall send a Notice of Hearing to the respondent’s address given on the application. The application lists the employer’s address. However, that employer’s address was not listed on the Notice of Hearing. 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. Ford v. Katzson Brothers Inc., W.C. No. 4-790-320 (November 12, 2009).
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The attorney for the employer did receive a Hearing Confirmation notice which lists the date and time of the hearing but lists the location of the hearing as Denver and the address in Denver. However the Hearing Confirmation does not list the floor of the building where the hearings are held.
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 Loeffler v. Thomas Reeder d/b/a International Wrestling Alliance, W.C. 3-940-761 (September 14, 1992) (respondent entitled to personal notice of hearing). 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. Ford v. Katzson Brothers Inc., supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 7, 2010 is vacated and the matter is remanded for further proceedings.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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JOSE LOPEZ, DENVER, CO, (Claimant).
UB CODE ROOFING, Attn: CYNTHIA D. FORNEY-SMITH, C/O: REGISTERED AGENT, DENVER, CO, (Employer).
THE ELEY LAW FIRM, Attn: CLIFFORD E. ELEY, ESQ., DENVER, CO, (For Claimant).
ADRIAN VILLASENOR, ESQ., DENVER, CO, (For Respondents).
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