In the Matter of Claim of Habteghrgis v. Denver Marriott Hotel, W. C. No. 4-528-385 (CO 3/31/2006), W. C. No. 4-528-385.

Decision Date31 March 2006
Docket NumberW. C. No. 4-528-385.,W. C. No. 4-623-609.
PartiesIN THE MATTER OF THE CLAIM OF MASHO HABTEGHRGIS, Claimant, v. DENVER MARRIOTT HOTEL, Employer, and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Insurer, Respondents.
CourtColorado Supreme Court
FINAL ORDER

The respondents seek review of an order dated November 22, 2005 of Administrative Law Judge (ALJ) Coughlin insofar as it determined a claim for benefits is not barred by the statute of limitations. We previously remanded this matter and the ALJ chose to take administrative notice of certain facts from the Division of Workers' Compensation (DOWC) documents. The ALJ afforded the parties an opportunity to be heard on the propriety of taking notice and the tenor of the matter noticed. The ALJ issued a new order after remand concluding that the claim is compensable, and not barred by the statute of limitations. We affirm.

This case involves two separate claims which were consolidated for hearing. However, the respondents' appeal is limited to that portion of the order which concerns W.C. No. 4-528-385. The ALJ found that on April 11, 2001, the claimant sustained an injury to both knees. The injury was reported to the employer, and on May 9, 2001, the employer sent a first report of injury "to the insurer."

The claimant lost no time from work because of the injury. However, on October 10, 2001, an authorized treating physician placed the claimant at maximum medical improvement with an impairment rating of 5 percent of each lower extremity. The ALJ found that following this impairment rating the respondents did not file a final admission of liability, request a hearing, or pay permanent partial disability benefits.

In August 2004 the claimant filed an application for hearing seeking temporary total disability benefits. The respondents raised the statute of limitations as a defense.

On February 22, 2005, the ALJ entered an order finding the claim was not barred by the statute of limitations. In support of this conclusion the ALJ found that because the claimant was able to continue working and received medical treatment, it is unlikely the claimant initially recognized the nature, seriousness and probable compensable nature of the injury. However, the ALJ found that by January 29, 2002, the claimant "appreciated her situation" because she was sent a "hearing information packet from the division" which provided the claimant with "essential information about filing a claim." The ALJ concluded the claim was not barred because the claimant "finally took action on January 21, 2004, when she filed a pro se application for hearing, which was rejected." Even though rejected, the ALJ found that the application was sufficient to constitute notice of a claim.

Section 8-43-103(2), C.R.S. 2005, provides that a "notice claiming compensation" must be filed with the Division within two years after the injury or the claim "shall be barred." The ALJ found that the claimant filed a pro se application for hearing within this two year period and so determined the claim was not time barred.

On review, the respondents first contend that there is no substantial evidence in the record to support the ALJ's finding that the claimant filed a pro se application for hearing on January 21, 2004. The respondents argue that the ALJ in her Order After Remand did not state that she intended to take administrative notice that the claimant filed a pro se application for hearing. We disagree.

The ALJ in her Order After Remand noted that she had provided copies of the (DOWC) documents which she took administrative notice of in making her original decision and that she then essentially reached the same conclusions as in her initial decision. Order After Remand at 2. The ALJ then found that the claimant took action on January 21, 2004, when she filed a pro se application for hearing noting that, although the pro se application for hearing was ultimately rejected for filing, it nonetheless constituted adequate notice of her claim. Order After Remand at 7 ¶7. The ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. The order is sufficient if it indicates the basis of the ALJ's ruling. Riddle v. Ampex Corp., 839 P.2d 489 (Colo. App. 1992). It is sufficient for the ALJ to enter findings concerning the evidence she considered dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). It is clear that the ALJ took administrative notice of the DOWC documents in finding that the claimant filed a pro se application on January 21, 2004.

The respondents next argue that while the ALJ can take administrative notice that the DOWC chronological case history says the claimant filed an application for hearing on January 22, 2004, the ALJ may not take administrative notice that the claimant actually filed the application for hearing, since that was one of the very issues the parties were litigating (i.e., whether the claimant filed a notice claiming compensation within the two year statute of limitations). The cases cited by the respondents, Municipal Subdistrict v. OXY USA, Inc., 990 P.2d 701 (Colo. 1999)(request to take notice of whether a party exercised sufficient diligence) and One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501(Colo. App.1995)(request to take notice of the effectiveness of thermography) do not control as to whether the ALJ could take administrative notice of a date the DOWC records reflect the application was filed on. A court can take judicial notice of its own records and files. Id. We perceive no error in the ALJ taking notice of the date on which the DOWC records reflect the application was filed. People v. Milton 732 P.2d 1199 (Colo. 1987); Vento v. Colorado Nat'l Bank 985 P.2d 48 (Colo.App. 1999); Harris v. American Pacific W.C. 3-66-653 (January 2, 1987).

The respondents next dispute that DOWC records show the claimant filed an application for hearing in January 2004, because the records show that the Division rejected the application submitted for failing to have a certificate of mailing. The respondents cite Rule of Procedure VIII (A)(3), 7 Code Colo. Reg. 1101-2. At the relevant time, Rule VIII provided an application would not be accepted for filing unless it contained all the information required. (Since the time of the hearing in this matter, the rules of procedure have been renumbered. The present version of Rule VIII is found in Office of Administrative Courts Rules of Procedure "OACRP" 8.) We do not disagree that the claimant's actions violated Rule VIII.

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