Opinion
W.C. No. 3-875-498
November 8, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ) insofar as it determined that the claim was not closed by a final admission of liability. We affirm.
The sole issue for determination is whether a Final Admission of Liability, which the respondents filed with the Division on or about July 1, 1988, closed the claim under § 8-43-203(2), C.R.S. (1995 Cum. Supp.). The ALJ found that the claimant injured his knee on August 15, 1987, and was disabled from performing his job as a football player. The respondent-employer (Denver Broncos) filed a first report of injury which listed the claimant's address as 5700 Lincoln Way, Denver, Colorado. This was not the claimant's "home address," but a business address of the Denver Broncos.
The claimant was disabled for ten months and received temporary total disability checks at the Lincoln Way address until June 30, 1988. On or about July 1, 1988, the respondent-insurer (CCIA) mailed the final admission to the claimant at the Lincoln Way address. At that time, the claimant was in New Jersey for two weeks and did not return to Denver until approximately July 14. On July 15 the claimant left for football camp in Greeley, Colorado.
The claimant testified that during camp the Broncos "accumulated" mail at their Denver office and brought it to the personnel in Greeley. The claimant stated that, on July 25, 1988, he received a letter from the CCIA dated June 30, 1988. However, the claimant testified that he never received a copy of the final admission. The claimant also stated that he was waived by the Broncos on July 29 and was acquired by the Atlanta Falcons, and that no mail was forwarded to him by the Broncos.
The ALJ found that the claimant "testified credibly" concerning his failure to receive the final admission of liability. Because the claimant did not receive the final admission the ALJ held that the claim was not closed and awarded additional medical benefits.
I.
On review, the respondents contend that, because the claimant failed to contest the final admission of liability as provided in § 8-43-203(2), the claim for further benefits was closed. The respondents argue that neither § 8-43-203(2), nor due process of law, requires that a claimant receive "actual notice" of a final admission. Thus, the respondents assert that they complied with § 8-43-203(2) by mailing the final admission to the claimant's last known address, and that the claimant's failure to receive the admission must be attributed to the claimant. We disagree with these arguments.
The respondents recognize that we rejected similar arguments in Munford v. Bowlen, W.C. No. 3-889-101, July 13, 1995. In that case we held that due process of law requires that a claimant receive notice of a final admission since it substantially affects the claimant's right to receive future benefits. However, the respondents rely on Ault v. Department of Revenue, 697 P.2d 24 (Colo. 1985), and Klingbeil v. State Department of Revenue, 668 P.2d 930 (Colo. 1993), for the proposition that a claimant is not entitled to "actual notice" of a final admission. Thus, the respondents assert that Munford was wrongly decided.
Initially, we note that § 8-43-203(2) does not state whether the claimant must receive "actual notice" of the final admission. However, as we noted in Munford, a final admission of liability forecloses the claimant's opportunity to receive additional benefits. Since the filing of a final admission is critical to a claimant's exercise of his procedural rights, we believe that the statute contemplates that the claimant will receive "actual notice" of the final admission. See Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo. 1984) (one of the purposes of the Act is to establish procedural safeguards to assist workers in procuring compensation).
In reaching this result, we do not foreclose the possibility that a claimant may waive, or be estopped from asserting, his right to actual notice. For instance, avoiding service of the final admission, or providing an incorrect address might foreclose the right to actual notice. Further, respondents benefit from a presumption that properly addressed mail is received. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Here, however, the presumption of receipt was overcome, and there is no evidence of misconduct by the claimant.
Moreover, even if the statute itself does not require actual notice of the final admission, we believe that the circumstances warrant the conclusion that the claimant was denied due process of law. Generally, due process contemplates that parties will receive timely notice of critical determinations affecting their substantial rights. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). As the respondents argue, notice by mail suffices for purposes of due process if it is reasonably calculated to provide notice in light of the relevant circumstances. Ault v. Department of Revenue, supra. However, in both Ault and Klingbeil, there was evidence that the party claiming the right to notice was at fault for the failure to receive notice. Ault involved deliberate avoidance of the mail and Klingbeil involved failure to provide a current address. Furthermore, Ault itself stated that the court was leaving open "the possibility that due process may not be satisfied where nondelivery is due to circumstances entirely beyond the recipient's control." Ault v. Department of Revenue, 697 P.2d at 28, n. 11.
Consequently, in Utah Motel Associates v. Denver County Board of Commissioners, 844 P.2d 1290 (Colo.App. 1992), the Court of Appeals held that a taxpayer's non-receipt of a notice of decision would stay the time for an appeal. Subsequently, in Ward v. Douglas County Board of Commissioners, 886 P.2d 310 (Colo.App. 1994), the court stated that the Utah Motel case reflects "procedural due process concerns which arise from a taxpayer's failure to receive notice of the denial." The Ward case distinguished the Utah Motel case because, in Ward, the taxpayer failed to keep the administrative agency notified of his current address.
Applying these principles here, the ALJ's order supports the conclusion that the claimant was denied due process. At the time the final admission was mailed, the claimant was receiving mail at the 5700 Lincoln Way address. However, there is no evidence that his failure to receive the final admission was the result of his own misconduct or negligence.
To the contrary, the claimant received mail sent to the Lincoln Way address on July 25, long after the final admission was mailed. Thus, the ALJ properly concluded that the claimant's failure to receive the final admission was not due to the claimant's failure to provide a current address, or to any attempt to evade receipt of the final admission. Rather, the ALJ implicitly determined that the claimant's failure to receive the final admission was due to a mistake committed by the post office or the Denver Broncos. (Tr. p. 27-28). In either event, the claimant was not responsible for his failure to receive the admission.
It follows that we reject the respondents' assertion that the claimant received "constructive notice" of the final admission of liability under principles set forth in Public Service Co. v. Boatwright, 749 P.2d 456 (Colo.App. 1987). In Boatwright, the Court of Appeals held that an employer substantially complied with the statutory requirement to admit or deny liability despite the fact that the claimant did not actually receive a copy of the admission. This was true because the respondent filed the admission with the Division and the claimant received all benefits to which he was entitled.
Here, unlike the situation in Boatwright, adoption of the respondents' position on constructive notice would cause substantial prejudice to the claimant. The obvious purpose of the provisions of § 8-43-203(2) is to afford the claimant notice of the potential closure of his claim and provide him the opportunity to object. If the respondents' position were adopted, the claimant would be deprived of his opportunity to object despite the fact that he never received the requisite statutory notice or any other indication that the respondents intended to close the claim.
II.
The respondents' final argument is that the ALJ failed to consider the statutory presumption that mailing the admission to the claimant's correct address creates a presumption of receipt. However, the ALJ found as a matter of fact that the claimant did not receive the admission of liability. Consequently, it is immaterial on whom the ALJ would have placed the burden of proof had there been no evidence concerning non-receipt of the admission.
IT IS THEREFORE ORDERED that the ALJ's order, dated February 8, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed November 8, 1995 to the following parties:
Dave Baran, 2502 Lighthouse Lane, Parlin, NJ 08859
Patrick D. Bowlen, Denver Broncos Football Club, 13655 Broncos Parkway, Englewood, CO 80112
Colorado Compensation Insurance Authority, Attn: D.A. Thomas, Esq. (Interagency Mail)
Floyd M. Youngblood, Esq., 4465 Kipling, Ste. 102, Wheat Ridge, CO 80033
(For the Claimant)
By: ___________________________