Opinion
W.C. No. 4-296-143
July 12, 1999.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which determined the claim is closed, and denied the claimant's petition to reopen. We reverse the ALJ's determination that the claim is closed and remand for further proceedings.
On May 2, 1995, the claimant suffered a compensable injury. On June 12, 1996, the respondents mailed a Final Admission of Liability to the claimant and the claimant's former attorney of record. The ALJ found that neither the claimant nor his attorney received the Final Admission. However, the ALJ found that the respondents remailed a copy of the Final Admission to the claimant's attorney on October 1, 1996, and that the attorney received the Final Admission on October 3, 1996, but did not timely file an objection. Under these circumstances, the ALJ determined the claim is closed.
The ALJ also denied the claimant's petition to reopen the claim. Therefore, the ALJ denied the claimant's request for additional benefits.
On review, the claimant contends, inter alia, that there is no evidence he received the respondents' Final Admission. Therefore, the claimant argues the ALJ erroneously determined that his failure to file a written objection to the Final Admission closed the claim.
The respondents argue that notice to the claimant's attorney constitutes notice to the claimant. Therefore, the respondents contend that it is immaterial the claimant did not receive the Final Admission. We disagree with the respondents.
Due process protections require that the parties receive actual notice of proceedings which may result in the deprivation of a property interest. See Colorado State Board of Medical Examiners v. Palmer, 157 Colo. 40, 400 P.2d 914 (1965). Accordingly, we have previously held that a claimant is entitled to actual notice of an order requiring the claimant to show cause why the claim should not be closed for lack of prosecution, even though the order was received by the claimant's attorney of record. Bluearm v. Ready Men Labor, W.C. No. 4-010-622 (May 6, 1996). Similarly, we have held that a respondent is entitled to actual notice of a hearing even though the respondent's attorney had notice of the hearing. Loeffler v. Thomas Reeder, W.C. No. 3-940-761 (September 14, 1992).
Under § 8-43-203, C.R.S. 1998, a claimant's failure timely to object to a final admission of liability forecloses the claimant's right to further benefits absent an order reopening the claim. Consequently, the filing of a final admission inherently involves the potential deprivation of a significant property interest. Bowlen v. Munford, 921 P.2d 59 (Colo.App. 1996) ; Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986); Ramos v. Wal-Mart Stores, Inc., W.C. No. 4-163-653 (December 12, 1995). Therefore, we conclude the claimant is entitled to actual notice of the final admission before the failure timely to object operates to close the claim.
In reaching this conclusion, we recognize that under some circumstances, service on a party's attorney of record has been held to be sufficient notice on the party. Dickman v. Demoss, 660 P.2d 1 (Colo.App. 1982) (notice of attorney in bankruptcy proceeding may be imputed on client). However, § 8-43-203(2), C.R.S. 1998, provides that:
"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."
(Emphasis added)
Accordingly, § 8-43-203 expressly contemplates that the claimant receive actual notice of the final admission so that the claimant may determine if he requests further compensation.
Similarly, the Director of the Division of Workers' Compensation has adopted procedural rules for the administration of the Workers Compensation Act (Act). Section 8-47-107 C.R.S. 1998. Rule XI(B)(1), 7 Code Colo. Reg. 1101-3 at 29, provides that:
"Whenever a document is filed with the Division, a copy of the document shall be mailed to each party to the claimant and attorney(s) of record, if any."
We may not excuse the failure to follow the specific service procedures provided by the Act and Rule IX(b)(1). See Padilla v. D.E. Frey Co. Inc., 939 P.2d 475 (Colo.App. 1997) (court's failure to comply with C.R.C.P. in mailing judgment to all parties, extended time for filing post-trial motions for relief) ; Adolph Coors Company v. Charnes, 690 P.2d 893 (Colo.App. 1984), aff'd., 724 P.2d 1341 (Colo. 1986). Consequently, we conclude that an uncontested final admission of liability is not sufficient to close a claim unless the final admission is actually mailed to and received by the claimant.
Our conclusion is supported by Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986), where there was no timely filed objection to a final admission of liability that had been mailed to the claimant but not the claimant's attorney of record. At the time of final admission, Rule XI did not exist. Nevertheless the court concluded that procedural due process considerations warranted extension of the rule to require that both the attorney and the claimant receive notice of a final admission before the failure to contest the final admission may operate to close the claim. Id. at 96. Further, in Bowlen v. Munford, supra, the court held that where the evidence indicated that the claimant did not receive the insurer's final admission of liability and was not otherwise apprised of its existence, mailing of the final admission to his last known place of employment was insufficient to advise the claimant of the effect of his failure to respond or satisfy the requirements of Rule XI(B)(1).
Here, the respondents do not dispute the ALJ's finding that the claimant never received the Final Admission mailed on June 12, 1996, and there is no assertion or evidence that the June 12 final admission was remailed to the claimant. Nor is there evidence from which the ALJ could reasonably infer that the claimant had actual notice of the final admission received by his attorney on October 3, 1996. Under these circumstances, the record compels the conclusion that the uncontested final admission did not close the claim. Consequently, the ALJ erred in finding that the claimant is precluded from receiving additional benefits in the absence of an order reopening the claim, and the matter must be remanded for further proceedings concerning the claimant's entitlement to benefits.
In view of our disposition we do not consider the claimant's remaining arguments.
IT IS THEREFORE ORDERED that the ALJ's order dated October 10, 1998, is reversed, and the matter is remanded to the ALJ for further proceedings concerning the claimant's entitlement to workers' compensation benefits.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Copies of this decision were mailed July 12, 1999 to the following parties:
Jose G. Gonzales, 3371 Jasmine, Denver, CO 80207
Pillow Kingdom, 105 W. Jefferson Ave., Englewood, CO 80110-3615
General Insurance Company of America d/b/a Safeco Insurance Company, P.O. Box 5687, Denver, CO 80217-5687
Robert M. Maes, Esq., 1610 Gaylord St., Denver, CO 80206 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600 N, Denver, CO 80202 (For Respondents)
BY: JLS