W.C. No. 4-329-307Industrial Claim Appeals Office.
September 28, 2000
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied and dismissed her request for a Division-sponsored independent medical examination (DIME) on the grounds of laches. We remand the matter for a determination of whether the claimant filed a timely request for specific findings of fact and conclusions of law.
The hearing was held on October 25, 1999. On November 15, 1999, the ALJ entered a summary order denying the claimant’s request for a DIME on the issue of maximum medical improvement. The summary order contains a certificate of mailing dated November 17, 1999.
The record transmitted to us on review contains the claimant’s Request for Specific Findings of Fact and Conclusions of Law, with a certificate of mailing indicating that the request was mailed to the Division of Administrative Hearings on November 30, 1999. The request bears a stamp: “RECEIVED DIVISION OF ADMIN. HEARINGS DEC 03 1999.”
Former § 8-43-215, C.R.S. 1999, [amended 2000 Colo. Sess. Laws, Ch. 138 at 480, effective April 28, 2000], which applies to this claim, provides that: “Any party dissatisfied with a summary order may request specific findings of fact and conclusions of law in writing within fifteen days after the date of the certificate of mailing of the summary order.” Failure to request specific findings within the statutory time limit is jurisdictional and mandates dismissal of the appeal. Reed v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0084, January 20, 2000). In Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0963, March 2, 2000), the court held that a “request” for specific findings is not made until the request is received by the Division of Administrative Hearings and that “mailing of the request does not suffice to effect a request.” Slip. op. at 4. Furthermore, jurisdiction may not be waived by consent, nor may it be conferred by estoppel Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984).
Here, the claimant’s request for specific findings of fact was untimely unless received by the Division of Administrative Hearings on or before December 2, 1999. The date stamp indicating that the request was not received until December 3, 1999, creates a factual issue concerning whether or not the claimant filed a timely request for specific findings of fact and conclusions of law. Because we lack authority to conduct hearings and make findings of fact, the matter must be remanded to the ALJ with directions to determine whether the claimant filed a timely request for specific findings of fact and conclusions of law Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1439, April 20, 2000) (not selected for publication) (Panel erred in finding request for specific findings was untimely without affording the respondents an opportunity to present evidence that the request was timely filed with the Division of Administrative Hearings). The ALJ may hold a hearing, if necessary, to resolve any disputed factual issues. Once the ALJ determines the timeliness of the request for specific findings, she may dismiss the claimant’s appeal or transmit the matter to us for review of the substantive issue.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed September 28, 2000 to the following parties:
Theresa Rodecape, 1224 Osgood Road, Colorado Springs, CO 80915
Crissey Fowler Lumber Company, P.O. Box 1578, Colorado Springs, CO 80901-1578
TIG Fairmont Insurance Company, Sundee Hahn, P.O. Box 17005, Denver, CO 80217
Jon C. Thomas, 1032 N. Wahsatch Ave., Colorado Springs, CO 80903-2484 (For Claimant)
Carol A. Finley, 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondent)
BY: A. Pendroy