Klosterman v. Industrial Com'n of Colorado

• Decision Date: 25 October 1984
• Citation: Klosterman v. Industrial Com'n of Colorado, 694 P.2d 873 (Colo. App. 1984)
• Docket Number: 84CA0045
• Parties: Paul G. KLOSTERMAN, Petitioner, v. INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, and Barbara Guillet, Respondents. . III
• Court: Colorado Court of Appeals

Page 873

694 P.2d 873

Paul G. KLOSTERMAN, Petitioner, v.INDUSTRIAL COMMISSION OF COLORADO, Department of Labor and Employment, and Barbara Guillet, Respondents.

No. 84CA0045.

Colorado Court of Appeals Div. III.

Oct. 25, 1984.

Rehearing Denied Nov. 29, 1984.

Dawes & Accetta, P.C., Robert C. Dawes, Durango, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol.Gen., Laura Udis, Asst. Atty. Gen., Denver, for respondentsIndus. Com'n and Dept. of Labor and Employment.

Sharon L. Hansen, Cortez, for respondentBarbara Guillet.

BERMAN, Judge.

Petitioner, Paul Klosterman, seeks review of a final order of the Industrial Commission which denied his petition to reopen a prior determination that he was individually liable as an employer of claimant, Barbara Guillet, for her workmen's compensation benefits.We affirm.

Claimant filed a claim for compensation in April 1981, alleging that she had sustained a back injury in April 1977 while working for the Bell Creek Rig Restaurant in Cortez.She stated that she had reported the injury to Klosterman and Michael Barry.The Division of Labor forwarded a copy of the claim together with an inquiry about insurance coverage to Bell Creek Rig at its street address.Klosterman responded, essentially denying that claimant had sustained a compensable injury.He stated that he was a partner in the business with Barry but not "an active participant" in April 1977 and had recently taken over its management.He gave his address at the Bell Creek Rig with a post office box number.

A hearing was held in August 1981 at which neither Klosterman nor anyone else appeared on behalf of the employer.The hearing officer found that claimant had sustained a compensable injury and that her claim was timely.No determination was made as to benefits other than that claimant was entitled to medical benefits.This order, as well as all notices of hearing and subsequent orders, designated Michael Barry and Paul Klosterman, d/b/a Bell Creek Rig Restaurant, as the noninsured employer.

In March 1982, the Division advised claimant by form letter, with a copy to the employer, of her rights with respect to any claim for permanent disability.Upon claimant's request, a hearing was then scheduled and notice thereof was sent to the named employer and to Klosterman at the addresses previously used.No one appeared at the hearing on behalf of the employer.

In an order entered in November 1982, the hearing officer found that claimant had been temporarily disabled for 171 weeks and had sustained a permanent disability of 15 percent as a working unit.Including medical benefits and a 50 percent penalty for failure to insure, the employer was ordered to pay $61,993.85, with interest as provided in § 8-52-109(2), C.R.S.

Klosterman filed his petition to reopen in March 1983, alleging error or mistake.He was the only witness at the hearing on the petition.He testified and established by documentary evidence that the Bell Creek Rig Restaurant was owned and operated by a corporation.In 1977he and Barry were stockholders.He stated that he had received notice of the August 1981 hearing and that his nonattendance was inadvertent.After he received a copy of the 1981 order establishing liability, he contacted an attorney.The attorney advised him that the claim should have been filed against the corporation and that he would so advise claimant's attorney.A copy of a letter of September 1981 from Klosterman's attorney to claimant's attorney was introduced into evidence.

Klosterman stated that the only communication he had received thereafter was the copy of the Division's March 1982 letter to claimant.He did not receive notice of the June 1982 hearing nor a copy of the November 1982 order.He no longer had a connection with the business addresses to which these and all previous communications from the Division were sent and did not advise the Division of a change of address.After the initial consultation, Klosterman heard nothing further from his attorney and did not contact him again until he learned that a judgment had been entered against him.The record reflects that the attorney did not enter an appearance with the Division.

The hearing officer found the facts essentially as set forth above.He specifically found that Klosterman "never followed through to determine what effort, if any [his attorney] made in his behalf," and concluded that because of his failure to continue to check with his attorney and his failure to attend the hearings, "the error or mistake in this case is ... [Klosterman's] neglect."The hearing officer further determined that since Klosterman had not...