W.C. No. 4-146-289Industrial Claim Appeals Office.
January 22, 1996
ORDER OF REMAND
The respondent seeks review of a final order of Chief Administrative Law Judge Felter (ALJ), dated September 27, 1995, which dismissed the respondent’s petition to review an earlier order. We set aside the September 27 order and remand for further proceedings.
The following statement of facts is gleaned from our review of the record. On August 31, 1995, the ALJ mailed to the parties an order awarding medical benefits. The order provided that a “Petition to Review should be filed at the Division of Administrative Hearings, 1120 Lincoln St., 14th Floor, Denver, Colorado 80203.” On September 5, 1995, the respondent filed a “Petition to Review” with the Division of Workers’ Compensation, apparently at 1515 Arapahoe, Denver, Colorado.
On September 27, the ALJ entered the “Order Dismissing Petition to Review.” In support of this order, the ALJ cited § 8-43-301(2), C.R.S. (1995 Cum. Supp.), which provides that, when an order is entered by an ALJ, a petition to review must be filed within twenty days “at the place indicated in the order.” The ALJ stated that the Division of Administrative Hearings is not the Division of Workers’ Compensation, and therefore, the respondent failed to file a petition to review at the place designated in the order. The order also states that, “by happenstance, a copy of the Respondent’s petition to review, filed with the Division of Workers’ Compensation, . . . was furnished the Division of Administrative Hearings.”
On review, the respondent contends that it “substantially complied” with § 8-43-301(2) because the petition to review was actually received by the ALJ and the Division of Administrative Hearings within the statutory twenty day period. Because we conclude that the ALJ’s findings of fact are insufficient to support appellate review, we remand for further proceedings and entry of a new order.
As a general rule, failure to comply with statutory requirements concerning the filing of a petition to review deprives us of jurisdiction to consider the appeal. Newman v. McKinley Oil Field Service, 696 P.2d 238
(Colo. 1984). This is true because until a timely document is presented no appellate process has been initiated. Newman v. McKinley Oil Field Service, supra.
Moreover, it has been held that failure to mail a petition to review to the address designated in an order, as provided by § 8-43-301(2), constitutes a jurisdictional defect. The statutory requirement that a petition to review be filed at the place designated in the order reflects the General Assembly’s desire to effect a precise filing requirement which insures the expeditious functioning of the administrative review process Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
However, § 8-43-301(2) does not prescribe any particular method of “filing” a petition to review “at the place indicated in the order.” Neither does the statute suggest that an incorrect filing cannot be remedied by proper delivery within the twenty day time limit. To the contrary, the statute requires only that a petition to review be delivered to the correct location within the time limit. The following language fro Buschmann v. Gallegos Masonry, Inc., supra, is pertinent:
“Therefore, we hold that if a failure properly to mail or deliver a petition for review of an ALJ’s order in a workers’ compensation proceeding results in an untimely filing at the office indicated in the ALJ’s order, the petition is jurisdictionally defective and review on the merits is barred.” (Emphasis added).
Here, the ALJ’s September 27 order indicates that at some point in time the respondent’s petition to review came into the possession of the ALJ and the Division of Administrative Hearings. The ALJ’s order notwithstanding, the critical issue is not whether the petition to review was delivered to the correct location by “happenstance” or by the efforts of the respondent. Rather, the critical issue is whether the respondent’s initial misdelivery “resulted” in failure to deliver the petition to review to the correct location within the statutory twenty days period.
Here, in its brief, the respondent asserts that it contacted the ALJ’s office and arranged for the ALJ to receive a copy of the petition to review, at the correct location, within the twenty day period. If this factual assertion were proven, the initial misdelivery of the petition would not have “resulted” in an untimely filing at the location indicated in the ALJ’s order. To the contrary, the ALJ would have received the petition in a timely fashion and the statute would have been complied with.
The ALJ’s order does not rule out the possibility that he received the petition to review, at the correct location, within the statutory time limit. On remand, the ALJ shall make a specific factual determination as to whether the petition to review was received at the correct location within the statutory time limit. If there is any factual dispute concerning this issue the parties should be afforded a hearing so that they may present evidence concerning the matter. Moreover, if the ALJ finds as a matter of fact that the petition to review was received at the correct address, in a timely fashion, he shall then consider the respondent’s petition to review the earlier order of August 31, 1995.
In view of this determination, we need not consider the respondent’s other argument.
IT IS THEREFORE ORDERED that the ALJ’s order, dated September 27, 1995, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed January 22, 1996 to the following parties:
Samuel Myrant, 3855 Newton St., Denver, CO 80211
City County of Denver, Attn: Jean Baines, 1445 Cleveland Pl., Annex 1, #200, Denver, CO 80202
Douglas R. Phillips, Esq., 155 S. Madison St., Ste. 330, Denver, CO 80209 (For the Claimant)
John Palermo, Assistant City Attorney, 1445 Cleveland Pl., Room 303, Denver, CO 80202 (For the Respondent)
By: _______________________