W.C. No. 4-312-835Industrial Claim Appeals Office.
December 19, 1997
ORDER OF REMAND
Claimant seeks review of orders of Administrative Law Judge Wheelock (ALJ), entered on January 31, 1997, March 28, 1997, May 16, 1997, and July 17, 1997. We remand the matter for further proceedings.
This case has a complicated procedural history. Suffice it to say that the claimant filed a claim against U.S. Home Corporation (U.S. Home), as insured by Old Republic Insurance Company (respondents), alleging that U.S. Home was his statutory employer at the time of a work-related injury. The claimant previously filed a separate claim against two other businesses which he asserted were his employers at the time of the injury.
On or about January 20, 1997, the respondents moved to dismiss the claim against U.S. Home alleging that it was not the claimant’s statutory employer, and that the claim against U.S. Home is barred under the doctrine of collateral estoppel. On January 31, 1997, the ALJ entered an order granting the respondents’ motion and dismissing the claim with prejudice. The copy of the order contained in the file bears a stamp indicating that no objection was filed, and that the motion was “deemed confessed Rule VIII(D).” This order was purportedly mailed to the parties on February 5, 1997.
On February 5, 1997, the claimant filed a “Response to Motion to Dismiss Claim” contending that there are factual issues concerning U.S. Home’s liability as his statutory employer, and that the doctrine of collateral estoppel does not apply. The claimant also filed a timely petition to review the ALJ’s January 31 order.
On March 7, 1997, the respondents filed a “Motion to Dismiss Claimant’s Petition for Review with Incorporated Legal Authority.” This motion incorporated the respondents’ prior arguments for dismissal, and also asserted that the petition to review should be dismissed because the claimant “failed to timely respond to respondents’ motion to dismiss filed January 20, 1997.” This March 7 motion also argues that the ALJ’s January 31 order is interlocutory, and therefore, not reviewable.
The claimant filed a response to the March 7 motion arguing that, under § 8-43-301(4), C.R.S. 1997, the ALJ has no authority to dismiss his petition to review the January 31 order. The claimant’s response also states that nothing in the ALJ’s January 31 order indicates that the respondents’ motion to dismiss was “deemed confessed.” In support of this assertion, the claimant attached a copy of an order dated January 31, 1997, dismissing the claim. However, unlike the order contained in the file, the order submitted by the claimant does not contain any statement that the motion to dismiss was deemed admitted for failure to respond.
On March 28, 1997, the ALJ entered an order dismissing the claimant’s petition to review the January 31 order. Thereafter, the claimant sought an extension of time to file a petition to review the March 28 order, but the ALJ denied this request on May 16, 1997. The claimant then filed a petition to review the orders of January 31, March 28 and May 16, 1997, but the ALJ dismissed this petition to review on July 17, 1997. The claimant then petitioned to review the July 17 order, and the matter was ultimately referred to us for review.
The claimant argues, inter alia, that the ALJ erred in “dismissing” his initial petition to review the order of January 31, 1997. The claimant argues that, under the circumstances of this case, the ALJ improperly circumvented the statutory procedures for review. We agree with this argument.
After a claimant files a timely petition to review an ALJ’s order, the proper procedure for review of the order is set forth in § 8-43-301(4). The statute provides that, after the record is complete, the parties are to be notified in writing and a briefing schedule established. The statute further provides that after the briefs are filed, or the time for filing has run, the “administrative law judge shall have thirty days to enter a supplemental order or transmit the file to the industrial claim appeals office for review.” Further, the time limit for issuing a supplemental order is jurisdictional, and if no supplemental order is entered the matter must be transmitted to us for review Hillebrand Construction v. Worf, 780 P.2d 24 (Colo.App. 1989).
After the claimant filed the petition to review the January 31 order, the ALJ did not notify the parties that the record was complete, nor did she establish a briefing schedule. Moreover, the ALJ did not enter a supplemental order or transmit the file to us as required by § 8-43-301(4). Thus, the ALJ erred by failing to follow the statutory review procedures.
We should not be understood as stating that an ALJ may never dismiss a petition for review. If an ALJ determines that a petition has not been filed in accordance with the mandatory jurisdictional prerequisites, the ALJ may enter an order dismissing the petition. Such an order would then be reviewable E.g. Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995). However, in this case the ALJ did not purport to dismiss the claimant’s petition to review on jurisdictional grounds. Rather, the ALJ apparently dismissed the petition because she found that it lacked substantive merit. The statute does not permit ALJs to conduct substantive review of petitions to review, except to the extent they may choose to enter a supplemental order or hold additional hearings. Section 8-43-301(5), C.R.S. 1997.
It follows that we must set aside the ALJ’s March 28 order dismissing the claimant’s petition to review the January 31 order. Further, all orders entered by the ALJ subsequent to the March 28 order are set aside. Moreover, the matter must be remanded to the ALJ for review of the claimant’s petition to review the January 31 order in accordance with the procedures established by § 8-43-301(4).
In this regard, we note there appears to be confusion, if not a dispute, concerning the actual content of the ALJ’s January 31 order. The file copy of the order and the copy submitted by the claimant are not congruent. The ALJ may wish to resolve this issue prior to ruling on the claimant’s petition to review.
In reaching this result, we have considered the respondents’ assertion that the January 31 order is interlocutory and not reviewable. However, the effect of the January 31 order is to deny the claimant benefits to which he claims entitlement from these respondents. Thus, the order is reviewable under §8-43-301(2), C.R.S. 1997.
Further, we are unpersuaded that the claimant’s alleged entitlement to benefits in the other case renders the January 31 order interlocutory. While the order in the other case may constitute some form of defense, it does not negate the fact that the claimant has been denied benefits in this case. We also note that the respondents’ reliance on Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986), is misplaced. In that case, the ALJ entered an order reopening the claim, and reserving the issue of benefits to be awarded as a result of the reopening. Here, there is a denial of benefits, and no further order or award is possible.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 28, 1997, is set aside, as are all orders after that date.
IT IS FURTHER ORDERED that the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed December 19, 1997 to the following parties:
William C. Wright, 4260 Bobby Kay Place, Colorado Springs, CO 80908
Mike Fallowfield, U.S. Home Corporation, P. O. Box 2863, Houston, TX 77252-2863
Larry D. Geiger, U.S. Home Corporation, 6000 S. Greenwood Plaza Blvd., #200, Englewood, CO 80011
Kimberly S. Bills, CPCU, Gallagher Bassett Services, Inc., 7935 E. Prentice Ave., #305, Englewood, CO 80111
Old Republic Insurance Company, P. O. Box 2200, Greensburg, PA 15601
W. Thomas Beltz, Esq. and Daniel A. West, Esq., 729 S. Cascade Ave., Colorado Springs, CO 80903 (For Claimant)
James R. Clifton, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
By: __________________________