Opinion
W.C. No. 4-274-500
December 17, 1998
FINAL ORDER
The claimant seeks review of an order issued by Administrative Law Judge Rumler (ALJ) which denied his motion for continuance and determined that the claimant had forfeited his right to future workers' compensation benefits. The claimant also seeks review of an order which denied his motion to recuse and reconsider. The respondent seeks review of the ALJ's order which determined that the claimant's petition to review was timely filed. We set aside the latter order and remand the case for further proceedings.
A hearing was scheduled for February 11, 1998, on the issues of reimbursement of temporary total disability benefits and penalties against the claimant. Notice of the hearing was mailed on October 30, 1997, to the claimant, who was not represented by counsel at the time. On February 5, 1998, the claimant's present counsel mailed a written entry of appearance and a motion to continue the hearing. The motion alleged that the claimant was unable to attend the hearing due to his job duties, and that claimant's counsel had just been retained and needed additional time to prepare. No ruling was made on the motion prior to the hearing.
Neither the claimant nor his counsel attended the hearing. However, it is undisputed that a representative from the office of claimant's counsel appeared and informed the ALJ that claimant's counsel was ill. The ALJ orally denied the motion to continue, and the hearing proceeded with the respondent presenting its evidence. The ALJ entered a summary order on March 10, 1998. Insofar as pertinent here, the ALJ found that good cause had not been shown for a continuance, and that the claimant had forfeited his right to future worker's compensation benefits by settling a third-party action without the respondent's written approval.
On March 13, 1998, the claimant filed a motion for reconsideration of the summary order, and for recusal of the ALJ. The ALJ deferred ruling on the motion for reconsideration and denied the motion for recusal in an order issued April 11, 1998. Also on that date, the ALJ issued Specific Findings of Fact and Conclusions of Law concerning the continuance and forfeiture.
The claimant did not file a petition to review until May 12, 1998, which is beyond the time permitted by § 8-43-301(2), C.R.S. 1998. However, the claimant contended that he had not received the Specific Findings of Fact and Conclusions of Law until May 12, when a copy was faxed to him by respondent's counsel. The respondent objected to the petition, contending that the filing requirement is jurisdictional and that § 8-43-301(2) does not allow for exceptions to the filing deadline. In an order issued June 11, 1998, the ALJ noted that the date on the certificate of mailing for the Specific Findings of Fact and Conclusions of Law was a Saturday, and found that the secretary who purportedly mailed the document does not work on Saturdays. The ALJ therefore determined that the date on the certificate of mailing was incorrect, and that there was no valid date upon which to determine whether the claimant's petition to review was timely. Consequently, the ALJ ruled that the petition would be considered timely. The respondent subsequently filed a petition to review that order. After briefs were filed on the claimant's petition to review, the case was transmitted for our review.
On appeal, the respondent renews its contention that the claimant's petition to review was not timely filed, and should therefore be dismissed. Initially, we note that it is unclear whether the June 11 order is reviewable. The order does not require the respondent to pay benefits or a penalty, nor deny the claimant benefits or penalties. See § 8-43-301(2); Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986). However, the timeliness of the claimant's petition is a jurisdictional issue. Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995); Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). Therefore, the issue may be raised at any point in the proceedings. Bradley v. Industrial Claim Appeals Officer, 841 P.2d 1071 (1992). Moreover, even if the issue had not been raised, we would be obliged to consider it sua sponte since it affects our authority to consider the claimant's petition to review.
In pertinent part, § 8-43-301(2) provides:
Any party dissatisfied with an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review with the . . . administrative law judge at the place indicated in the order. Such petition shall be filed within twenty days from the date of the certificate of mailing of the order, and unless so filed, such order shall be final.
We agree with the respondent's argument that jurisdictional filing requirements are to be strictly construed. See Digital Equipment Corp. v. Industrial Claim Appeals Office, supra. However, the strict enforcement of a filing deadline presumes that the parties have received notice of the need to act. Indeed, due process requires that parties receive timely notice of critical determinations affecting their substantial rights. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986); cf. Lewis v. Colorado Dept. of Labor Employment, 924 P.2d 1183 (Colo.App. 1998) (due process is not violated where claimant did not have notice of facts triggering a time limitation that is similar to a statute of repose). Further, procedural due process is violated when an attorney of record, through no fault of his own, is denied timely notice of a decision. See Mountain States Telephone and Telegraph Co. v. Dept. of Labor and Employment, 184 Colo. 334, 520 P.2d 586 (1974).
There is a presumption that a document which is properly addressed and mailed is received by the addressee. See Olsen v. Davidson, 142 Colo. 205, 350 P.2d 338 (1960). Further, the certificate of mailing on a document creates a presumption of delivery. See Allred v. Squirrel, 37 Colo. App. 84, 543 P.2d 110 (1975). However, these presumptions may be rebutted with credible evidence that the document was not, in fact, received. Here, the ALJ did not resolve this matter based on the assertion that claimant's counsel did not receive the Specific Findings of Fact and Conclusions of Law until the document was faxed to him by respondent's counsel on May 12. Rather, the ALJ determined that the certificate of mailing was defective because the employee who signed it does not work on Saturdays, when the document was allegedly mailed. However, there is no evidence in the record that the employee did not work on April 11, 1998, and whether the employee worked that day is not an adjudicative fact of which administrative notice may properly be taken. See C.R.E. 201(b) (facts subject to judicial notice are those not subject to reasonable dispute and are either generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned); § 8-43-210, C.R.S. 1998 (rules of evidence are applicable in workers' compensation proceedings); Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo. 1983) (the rule has traditionally been used cautiously in keeping with its purpose to bypass the usual fact finding process only when the facts are of such common knowledge that they cannot reasonably be disputed).
We find nothing in the record which contradicts the written assertions of claimant's counsel regarding his receipt of the Specific Findings and Conclusions, and those assertions cannot be summarily rejected without a hearing. See Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987). We therefore conclude that the matter must be remanded for an evidentiary hearing on this issue. See Pueblo School District No. 60 v. Clementi, 776 P.2d 1152 (Colo.App. 1989). Based on the evidence presented, the ALJ shall issue a new order on whether to accept the claimant's petition for review.
In light of this disposition, we do not address the issues raised in the claimant's petition to review at this time.
IT IS THEREFORE ORDERED that the ALJ's order issued June 11, 1998, is set aside, and the case is remanded for further proceedings as indicated above.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Dona Halsey
_________________________________ Bill Whitacre
Copies of this order were mailed December 17, 1998 to the following parties :
Larry Sines, P.O. Box 471, Imperial, NE 69033
Monfort Transportation Co., 1650 AA Street, Greeley, CO 80631-9663
Julie Frantz, Monfort, Inc., Risk Management Dept., P.O. Box G, Greeley, CO 80631
Richard K. Blundell, Esq., 1024 Eighth St., Greeley, CO 80631 (For the Claimant)
Ronda K. Comings, Esq., 2629 Redwing Rd., #330, Ft. Collins, CO 80526 (For the Respondent)
By: ___________