Opinion
W.C. No. 4-008-289
October 22, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wells (ALJ) insofar as the ALJ required them to provide a Jacuzzi bathtub. The respondents contend they were denied due process of law because they did not receive adequate notice that the issue of the Jacuzzi would be considered by the ALJ. We agree, and therefore, set aside the contested portion of the order.
On May 13, 1997, the respondents filed an Application for Hearing on the issues of medical benefits "reasonable and necessary" and "treatment after max. improvement." The respondents explicitly stated that they sought a "re-determination of previous Order granting house cleaning services."
The claimant filed a Response to Application for Hearing, which endorsed the same issues. The Response did not contain a specific statement concerning the medical benefits in dispute and merely indicated that the "issues previously noted by Respondents" would be heard.
At the commencement of the hearing on September 9, 1997, respondents' counsel stated that the respondents sought an order terminating their liability for housekeeping services. The respondents also took the position that the claimant's receipt of occupational therapy and massage therapy is duplicitous, and therefore, they requested an order relieving them of one type of treatment. (Tr. p. 3).
Claimant's counsel then stated the claimant was seeking an order requiring the respondents to provide an in-home Jacuzzi tub. (Tr. p. 4). The respondents objected on grounds that they did not have adequate notice that the ALJ would be asked to adjudicate their liability for a Jacuzzi tub.
The ALJ determined that a Jacuzzi tub is a medical benefit, and therefore, the ALJ determined that the issue is encompassed in the endorsement of the issue of "medical benefits." (Tr. p. 6). Consequently, the ALJ overruled the respondents' objection.
In an order dated October 24, 1997, the ALJ determined that an in-home Jacuzzi bathtub is reasonably necessary to cure and relieve the effects of the claimant's industrial injury. Therefore, the ALJ ordered the respondents to pay for the acquisition and installation of a home Jacuzzi unit. The ALJ also terminated the respondents' liability for housekeeping services and occupational therapy.
Where an administrative adjudication turns on issues of fact, due process requires that parties be given adequate notice of the pending adjudication in order to present evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). It is for this reason that Rule of Procedure VIII(A)(5), 7 Code Colo. Reg. 1101-3 at 21, prohibits a party from adding an "issue" after the filing of the application or response "except on agreement of all parties, or approval of an administrative law judge for good cause shown."
Moreover, due process contemplates advance notice of both the legal and factual issues to be litigated. Cf. Monarrez v. Industrial Claim Appeals Office, 835 P.2d 607 (Colo.App. 1992) (interpreting requirement of "fair hearing" in context of unemployment compensation); Sands v. Industrial Claim Appeals Office, 801 P.2d 12 (Colo.App. 1990). Consequently, we have previously held that respondents are entitled to prior notice that the issue of liability for specific types of treatment will be considered. Ware v. Hewlitt Packard, W.C. No. 3-887-141 (May 18, 1992). We adhere to our prior conclusions. Therefore, we disagree with the ALJ's determination that the claimant's general request for a hearing on "medical benefits" constituted adequate notice that the claimant was seeking a particular medical benefit.
Here, the claimant's Response to Application for Hearing did not specifically notify the respondents of the claimant's request for a Jacuzzi tub. In fact, the Response does not list any issues other than the issues which were previously endorsed by the respondents. Under these circumstances, the respondents could reasonably presume that the specific factual issues to be heard were those they endorsed on their Application for Hearing.
Furthermore, had the respondents known that the reasonableness and necessity of a Jacuzzi bath tub would be an issue, they may have presented different or additional evidence. It follows, that the ALJ erred in adjudicating the respondents' liability for a Jacuzzi tub.
In reaching this conclusion we are mindful that the respondents' Application for Hearing did not expressly endorse the issue of their liability for additional occupational therapy. However, the claimant did not object to the ALJ's consideration of this issue. Consequently, unlike the respondents, the claimant waived her objection to notice that the issue of occupational therapy would be considered. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
Moreover, we reject the respondents' contention that the claimant was required to file a "petition to reopen" the Jacuzzi issue. Admittedly the ALJ issued a Corrected Summary Order dated June 24, 1997, which denied the claimant's request for a Jacuzzi bath tub. However, the order reserved the issue for redetermination. Therefore, the Jacuzzi issue was not closed and was not governed by the reopening provisions in § 8-43-303 C.R.S. 1998. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
Conversely, we disagree with the claimant's contention the Corrected Summary Order constituted adequate notice the claimant was seeking a Jacuzzi tub. The Corrected Summary Order does not specifically state that the issue will be considered at the September hearing. Furthermore, the order does not expressly relieve the parties of their duty to provide advance notice of the issues to be litigated at any subsequent hearing.
IT IS THEREFORE ORDERED that the ALJ's order dated October 24, 1997, is set aside insofar as at it requires the respondents to pay for the acquisition and installation of a Jacuzzi bathtub.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 22, 1998 to the following parties:
Carole Potereiko, 3169 Blue Mountain Way, Colorado Springs, CO 80906
May D F, c/o Karl A. Schulz, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903
Central Regional Claims Corp., Attn: Timothy Mullarkey, 11 N. Jackson, Clayton, MO 63105-0993
Richard E. Falcone, Esq., 3510 Galley Rd., #110, Colorado Springs, CO 80909 (For Claimant)
Karl A. Schulz, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For Respondents)
BY: _______________________