Opinion
W.C. No. 3-966-629
March 31, 2003
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Muramoto (ALJ) which determined the claim was closed by the claimant's failure to object to of a final admission of liability (FAL). We agree with the claimant that the record does not support the ALJ's findings and conclusions and, therefore, set the order aside and remand the matter for further proceedings.
No evidence was taken in this case except for the submission of a copy of the FAL. Consequently the ALJ's findings, and our recitation of them, are based on representations which the attorneys made to the ALJ at the time of the hearing on July 15, 2002.
The claimant sustained a compensable injury in 1989. The claimant reached maximum medical improvement in September 1999, and the respondents subsequently filed a FAL. The FAL contains a certificate of mailing dated May 29, 1997. The FAL was sent to the claimant at a street address, but there was no city, state, or zip code. The FAL was also sent to the claimant's former attorney at a street address in Denver. The claimant never received the FAL through the mail. The FAL was apparently received by the Division of Workers' Compensation (Division) on June 8, 2000.
The claimant's former attorney withdrew in May 2001, and the claimant's current attorney, Mr. Gurwin, began to represent the claimant. It was conceded that the former attorney gave a copy of the FAL to the claimant, but the ALJ found the claimant had no recollection of when that occurred. (Tr. P. 16; Finding of Fact 4).
The ALJ found the claimant received the FAL from the attorney more than 60 days before the hearing, and that "no objection to the final admission of liability" was made prior to the hearing. Consequently, the ALJ concluded the claim was closed pursuant to former section 8-43-203(2)(b), C.R.S. 1997 [significantly amended in 1998 for injuries occurring on or after August 5, 1998, 1998 Colo. Sess. Laws, ch. 313 at 1431-1432].
On review, the claimant contends that because she did not receive personal notification of the FAL through the mail, the FAL was insufficient to close the claim. The respondents argue the claimant received constructive notice because her former attorney received actual notice of the FAL, and that the claimant received actual notice when the former attorney provided the claimant a copy of the FAL.
As pertinent, former section 8-43-203(2)(b) provided as follows:
An admission of liability for final payment of compensation shall include a statement that this is the final admission by the workers' compensation insurance carrier in the case, that the claimant may contest this admission if the claimant feels entitled to more compensation, to whom the claimant should provide written objection, and notice that if the claimant does not contest the final admission in writing within sixty days of the date of the final admission the case will be automatically closed as to the issues admitted in the final admission.
We have previously interpreted section 8-43-203(2)(b) as requiring that the claimant be personally served with the FAL. The rationale for that conclusion is that the statute contemplates the claimant will be personally notified of the respondents' final position so that the claimant may decide whether to request further compensation. Further, this interpretation is consistent with Rule of Procedure XI (B)(1), 7 Code Colo. Reg. 1101-3 at 39, which provides that whenever a document is filed with the Division, "a copy of the document shall be mailed to each party to the claim and attorney(s) of record, if any." Gonzales v. Pillow Kingdom, W.C. No. 4-296-143 (July 12, 1999).
Thus, we reject the argument that constructive notice was established by service on the claimant's former attorney. To the contrary, as we held in Gonzales, where the statute and applicable rules require actual notice we are without authority to excuse non-compliance with the mandated procedures. See Adolph Coors Co. v. Charnes, 690 P.2d 893 (Colo.App. 184), aff'd. 724 P.2d 1341 (Colo. 1986).
Neither do we agree with the respondents' argument and the ALJ's conclusion that the record establishes "actual notice" based on the fact that the former attorney gave the claimant a copy of the FAL at some unspecified point in time. The ALJ apparently concluded that because the former attorney gave a copy of the FAL to the claimant, and this must have occurred more than sixty days before the hearing, the claimant failed to file a timely objection to the FAL.
However, we have previously held that an application for hearing may constitute a "written objection" to a FAL, even if the claimant does not file a separate objection with the Division. The rationale for this conclusion is that the purpose for the objection to the FAL is to notify the respondents that the claimant does not accept the respondents' "final" position concerning benefits, and that there is an ongoing controversy which is not subject to resolution by administrative closure. This purpose is served by the timely filing of an application for hearing after the FAL. Moreover, the statute does not expressly require that the Division be notified in writing of the claimant's objection. McCotter v. U.S. West Communications, W.C. No. 4-430-792 (March 15, 2001); Mitchell v. Office Liquidators, Inc., W.C. No. 4-409-905 (December 29, 2000).
Here, the claimant's application for hearing was filed on April 1, 2002, more than three months prior to the July 2002 hearing. Consequently, the issue was not whether the claim was closed because the claimant received the FAL more than sixty days prior to the hearing, and no objection was ever filed. Rather, the issue was whether the claimant received the FAL more than sixty days prior to the filing of the application for hearing, since the application would constitute a sufficient "written objection" to the FAL.
The record is devoid of any evidence from which the ALJ could plausibly infer the date on which the claimant's former counsel provided the FAL to the claimant. As the ALJ found, the claimant did not remember the date. Further, the mere fact that claimant's counsel withdrew in May 2001 provides no basis for inferring when counsel might have provided the FAL to the claimant. To the contrary, such an inference would be purely speculative. It follows there is no basis for concluding that the claimant's application for hearing constituted an untimely objection to the FAL. Because the record is insufficient to support the necessary factual findings and admits of only one reasonable interpretation, the issue is one of law which we may determine. Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
For the reasons stated above, we also reject the respondents' assertion that delivery of the FAL to the Division established the commencement of the 60-day period for filing an objection to the FAL. Notice to the Division would not provide the claimant the requisite notice contemplated by section 8-43-203(2)(b). McCotter v. U.S. West Communications, supra. Moreover, the respondents' proposed interpretation is contrary to that of the Director of the Division of Workers' Compensation. Rule of Procedure IV (L)(2), 7 Code Colo. Reg. 1101-3 at 7, states the "period for objecting to a final admission begins on the mailing date of the last final admission."
We therefore conclude the record failed to establish the case was closed under former section 8-43-203(2)(b).
In light of this resolution we need not address the claimant's argument concerning the date of the FAL.
IT IS THEREFORE ORDERED that the ALJ's order dated August 22, 2002, is set aside, and the matter is remanded for further proceedings consistent with the view expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
Copies of this decision were mailed March 31, 2003 to the following parties:
Deborah Meskimen, 3051 W. 64th Ave., Denver, CO 80221
Norman G. Young, Frozen Food Express Industries, Inc., 1145 Empire Central Pl., Dallas, TX 75247-4309
Insurance Company of North America, c/o ACE/ESIS, Inc., P. O. Box 911, Portland, OR 97207
Steven H. Gurwin, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Kathleen Mowry Fairbanks, Esq., and Matthew C. Hailey, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Hurtado