W.C. No. 4-217-926Industrial Claim Appeals Office.
March 30, 1999.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which assessed penalties for failure to comply with the Rules of Procedure governing requests for prior authorization of medical treatment. We remand the matter for a ruling concerning the filing of briefs.
On June 19, 1998, the ALJ mailed his order assessing penalties against the respondents. The respondents filed a timely petition to review alleging, in general terms, that the ALJ erred in assessing the penalties. On December 1, 1998, the parties were notified that the record was complete and the respondents had 20 days to file their brief in support of the petition to review. On December 21, 1998, the respondents filed a motion for extension of time to file their brief, and an extension was granted to and including December 30, 1998. However, the respondents did not file their brief until December 31, 1998.
The claimant did not file her brief in opposition until January 25, 1999. On the same day, the claimant filed a “stipulated motion” for extension of time. The motion admits that the brief was due on January 19, 1999, but states that it was not timely filed because of the “press of business.” The stipulated motion also indicates that the respondents had no objection to the extension. However, on January 27, 1999, the ALJ denied the claimant’s motion for extension citing Rule of Procedure VII (D) (4), 7 Code Colo. Reg. 1101-3 at 20. The rule provides that a request for extension of time to file a brief must be filed within the time specified for filing the brief or the request “shall be denied.” The ALJ then transmitted the matter to us on January 29, 1999.
On February 2, 1999, the claimant filed with the Division of Administrative Hearings a motion to reconsider the order denying the request for extension of time to file her brief. The ALJ did not rule on this motion but forwarded it to us. On March 1, 1999, the claimant filed with the Division of Administrative Hearings a motion to strike the respondents’ brief in support of the petition to review on grounds that it was filed one day beyond the deadline of December 30, 1998. Again, the ALJ transmitted a copy of the motion without ruling on it.
Under the circumstances, we are unable to determine whether the ALJ accepted and considered the respondents’ brief in support of the petition to review, or declined to consider it on grounds that it was untimely. Resolution of this question may be pertinent to determining whether the respondents raised all their arguments in a timely fashion. Consequently, on remand, the ALJ shall explicitly determine whether to accept the respondents’ brief or strike it as requested by the claimant.
Further, the ALJ shall explicitly rule on the claimant’s motion to reconsider denial of the extension of time to file a brief in opposition to the petition to review. We particularly note paragraph 2 of the motion which alleges that an employee of the Division of Administrative Hearings incorrectly advised a representative of claimant’s counsel that a brief may be filed late if “some written memorialization” is made.
Once the ALJ resolves the issues concerning the filing of briefs he may enter a supplemental order in accordance with section 8-43-301(4), C.R.S. 1998, or transmit the matter to us for review.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
_________________________________ Bill Whitacre
Copies of this decision were mailed MARCH 30, 1999
to the following parties:
Eloise Briscoe, P.O. Box 655, Morrison CO 80465
Linda Siedow, The Denver Post, 1560 Broadway, Denver CO 80202
Leona Zuffoletto, Liberty Mutual Insurance Co, 13111 East Briarwood Road, Ste. 100, Englewood, CO 80110
Shelly P. Dodge, Esq., 1763 Franklin St., Denver, CO 80218 (For Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St. Ste 1606, Denver, CO 80203 (For Respondent)
Barbara Carter, Subsequent Injury Fund, PO Box 300009, Denver, CO 80203-0009
BY: ______________