Opinion
W.C. Nos. 4-539-048, 4-546-112 4-574-504.
May 18, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated January 14, 2009, that dismissed with prejudice the claimant's petition to review. We affirm.
The ALJ entered an initial order dated November 17, 2008 denying the claimant's request for imposition of penalties. Attached to this order was a "certificate of service" indicating that a copy of the order was e-mailed to the claimant's attorney. The claimant filed a petition to review the November 17, 2008 order. The claimant's attorney, in a response to an Order to Show Cause why his petition to review should not be dismissed because it was filed beyond the statutory time limit, admitted that the initial November 17, 2008 order was e-mailed to his address listed on the certificate of service. However, the claimant's attorney stated that he receives hundreds of emails per day and due to the holidays, the demands in other cases and other reasons he was not able to review the e-mails for several weeks. The ALJ accepted these representations as true, but found that "good cause" or "excusable neglect" did not permit him to extend the jurisdictional time for filing a petition to review and therefore dismissed the petition to review. The ALJ found that the records of the Office of Administrative Courts (OAC) established that the initial order was e-mailed to the claimant's counsel on November 18, 2008 and the date stamped on the petition to review reflected that it had been received by OAC on December 19, 2008 (the date of service indicated in the petition). The ALJ concluded that the petition to review was not filed within 20 days of the date the ALJ's initial order was emailed to the claimant's attorney and the jurisdictional provisions of § 8-43-301(2), C.R.S. 2008 applied. Section 8-43-301(2) provides that a petition to review shall be filed within 20 days from the date of the certificate of mailing of the order, and, unless so filed, such order shall be final. Therefore, the ALJ dismissed the claimant's petition to review with prejudice.
The claimant brings this appeal contending that for various reasons the ALJ erred in finding that the "Certificate Of Service" attached to the initial order constituted substantial evidence sufficient to support a determination that the claimant's petition to review was not timely filed. We are not persuaded that the ALJ erred.
Because the issues raised by the claimant involve questions of fact, we must uphold the ALJ's resolutions if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999); Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). In our opinion, there is substantial evidence in the record to support the ALJ's determination that the initial order was e-mailed to the claimant's counsel on November 18, 2008 and that her petition to review was received by OAC on December 19, 2008, thereby establishing that her petition to review was not timely filed within 20 days.
Here, the ALJ gave the claimant an opportunity to the show cause why the petition to review should not be dismissed. The claimant did not raise any questions of whether the order was actually e-mailed to and received by her counsel. In his response to the show cause order claimant's counsel conceded receipt of the e-mailed order, but asserted various reasons why he had not reviewed the e-mail. The ALJ accepted these assertions and then determined that the certificate of service, executed by a clerk of the OAC, reflected that the ALJ's order was e-mailed to the claimant's attorney on November 18, 2008.
In our opinion, the record is sufficient to establish a presumption that the order was mailed to and received by counsel based on the certificate of service. See EZ Building Components v. Industrial Claim Appeals Office, 74 P.3d 516 (Colo.App. 2003); Sines v. Monfort Transportation, W. C. No. 4-274-500 (December 17, 1998). 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 service on a document creates a presumption of delivery. See Allred v. Squirrel, 37 Colo. App. 84, 543 P.2d 110 (1975). In our view, the ALJ's determination regarding the untimely filing of the petition to review is supported by substantial evidence.
In addition, the claimant concedes that at some "unspecified point in time" the order was e-mailed to the claimant's attorney at his email address. The claimant argues that the certificate of service does not identify the particular date of such service by e-mail. However, contrary to the contention of the claimant and as found by the ALJ, the certificate of service attached to the order in question identified the date the order was e-mailed.
The claimant argues that a "certificate of service," rather than a "certificate of mailing," was attached to the initial order. The claimant contends that a "certificate of service" is not in compliance with § 8-43-301(2), which provides that a petition to review shall be filed within 20 days from the date of "the certificate of mailing of the order."
We agree with the ALJ that to accept the claimant's argument that the order was fatally defective because of the difference in caption of "Certificate of Service" rather than a "Certificate of Mailing" would elevate form over substance. This is particularly true in the present case where the claimant's counsel concedes receiving the e-mail. Claimant's counsel was entitled to receive timely notice of the November 17, 2008 decision in order to meet the notice requirement of due process of law and § 8-43-301(2). See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). In our view, the notice requirements were substantially met by the certificate of service attached to the initial order. EZ Bldg. Components Mfg., LLC v. Industrial Claim Appeals supra. (substantial compliance with notice requirements sufficient to effect cancellation of policy); Rendon v. United Airlines 881 P.2d 482 (Colo.App. 1994), abrogated on other grounds, 32 P.3d 470 (Colo. 2001) (petition for review was timely filed, even though certificate of mailing did not indicate that petition had been mailed to ALJ; cover letter attached to petition showing that it had been mailed to ALJ within 20 days of ALJ's order substantially complied with certificate of mailing requirement).
Additionally, we note that § 8-43-215(1) C.R.S. 2008, which deals in general with orders, uses the term "certificate of mailing" and in the same sentence provides for service of the written order by electronic mail. We agree with the ALJ's analysis that § 8-43-215 and § 8-43-301 must be construed together and harmonized so as to give reasonable effect to both of them. See Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996); DeJiacomo v. Industrial Claim Appeals Office, 817 P.2d 552 (Colo.App. 1991) (where apparent conflict exists between two statutory sections, we must attempt to harmonize them in order to give effect to the legislative intent of both statutes). Under the circumstances of the present case, we view the use of the phrase "certificate of mailing" in § 8-43-301(2) as including service of the order by electronic mail as authorized in § 8-43-215(1). Because § 8-43-215(1) specifically provides that a certificate of mailing and a copy of such written order "shall be served by regular or electronic mail or by facsimile" to each of the parties in interest or their representatives, the certificate of service used in the present case was consistent with § 8-43-215(1). Moreover, under the circumstances we perceive no conflict with the statutory scheme governing the review of orders.
We further note that the OAC has promulgated a procedural rule authorizing service of papers by e-mail. OACRP Rule 16(A) provides as follows:
Service of pleadings or other papers on a party may be made by hand delivery, by mail to the address given in the pleadings, by facsimile transmission to a facsimile number given in the pleadings, by e-mail to an e-mail address given in the pleadings, or to the party's last known address as provided to the OAC. When an attorney represents a party, service shall be made on the attorney.
Here, note that the claimant's position statement filed just before the entry of the ALJ's initial order was sent by the claimant's attorney to the ALJ and opposing counsel by both mail and regular mail and listed the e-mail address for her attorney. Counsel for the claimant's e-mail address listed in her position statement is the same e-mail address listed by the clerk in the certificate of service of the initial order. In our view the service of the order by e-mail complies not only with the statutory provisions of § 8-43-215(1) and § 8-43-301(2) but also OACRP Rule 16(A).
The claimant at least infers that a rule of procedure requires that orders be sent by regular mail. W.C. Rule of Procedure 1-4(B), 7 Code Colo. Reg. 1101-3 relates to service of documents and provides that any document that is certified as mailed, including admissions, must be placed in the U.S. mail or delivered on the date of certification. In our view, service of the order by e-mail substantially complies with W.C. Rule 1-4(B). In any event we discern, at most, from any failure of Rule of Procedure 1-4(B) to recognize service by e-mail a mere limitation on the scope of the rule, as opposed to any conflict with OACRP Rule 16(A). See Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997); Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo.App. 1995) (applying general rules of statutory construction to administrative regulations).
The claimant next argues that § 8-43-215(1) pertains only to orders allowing or denying a "claim." Section 8-43-215(1) concerns orders and provides that the ALJ shall issue a written order allowing or denying a "claim" and also uses the term "certificate of mailing." We agree with the ALJ that the claimant apparently is arguing that because the ALJ's order pertained to the issue of penalties and § 8-43-215(1) only refers to an order "allowing or denying a claim" that the provision for e-mails under § 8-43-215(1) does not apply to the ALJ's order on penalties. However, we do not read § 8-43-215(1) as referring only to those claims involving the issue of "compensability." See Bestway Concrete v. Industrial Claim Appeals Office of State of Colo. 984 P.2d 680 (Colo.App. 1999) (statutes no longer only allow review of orders that allow or deny a "claim"). Therefore, to the extent we understand the claimant's argument we are not persuaded by it.
IT IS THEREFORE ORDERED that the ALJ's order dated January 14, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
KITINA GRAY HALLETT, GREELEY, CO, (Claimant).
AUTOZONE INC., Attn: ROBERT H. COATE, ESQ., C/O: WHITE STEEELE PC, DENVER, CO, (Employer).
LIBERTY MUTUAL GROUP, Attn: ROBERT H. COATE, ESQ., C/O: DOMINION PLAZA, NORTH TOWER, DENVER, CO, (Insurer).
LAW OFFICES OF RICHARD K BLUNDELL, Attn: IRA A SANDERS, ESQ./RICHARD K BLUNDELL, ESQ., GREELEY, CO, (For Claimant).
WHITE STEEELE PC, Attn: ROBERT H. COATE, ESQ., C/O: DOMINION PLAZA, NORTH TOWER, DENVER, CO, (For Respondents).