W.C. No. 4-559-831Industrial Claim Appeals Office.
March 17, 2004
ORDER OF REMAND
The pro se claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied the claim for workers’ compensation benefits. We remand the matter to determine whether the claimant filed a timely petition to review.
The ALJ entered the order dismissing the claim on August 29, 2003. The order directed that any petition to review be filed with the ALJ at an address in Grand Junction, Colorado. On September 3, 2003, the claimant’s attorney filed a motion to withdraw. The motion was served on the claimant and advised him of the requirement to file a petition to review within 20 days of August 29 at the address indicated in the ALJ’s order. The motion to withdraw was granted on September 19, 2003.
The file contains a petition to review the ALJ’s order filed by the claimant. The petition to review contains a certificate of mailing stating that it was “mailed to the ALJ and to the following parties, at the addresses shown, on the date below.” The certificate shows the petition to review was mailed on September 18, 2003, but it does not list the ALJ as an addressee nor does it show the certificate was mailed to the Grand Junction address set forth in the ALJ’s order.
The petition to review contains a date stamp reflecting that it was received by the Industrial Claim Appeals Office on September 19, 2003. The file also contains an envelope with a post mark indicating that on September 18, 2003, the claimant mailed the petition to the Industrial Claim Appeals Office at its address in Denver, Colorado. The petition to review was then sent to the Division of Administrative Hearings and was stamped as received on September 26, 2003.
Section 8-43-301(2), C.R.S. 2003, provides as follows:
Any party dissatisfied with an order which requires any party to pay a penalty or benefits, or denies a claimant any benefit or penalty may file a petition to review with the director, or with the administrative law judge at the place indicated in the order, if the order was entered by the administrative law judge, and serve the same by mail on all the parties. Such petition to review shall be filed within twenty days from the date of the certificate of mailing of the order, and, unless so filed, such order shall be final. The petition to review may be filed by mail, and shall be deemed filed on the date of mailing, as determined by the certificate of mailing, provided the certificate of mailing indicates that the petition to review was mailed to the appropriate administrative law judge or to the director, if appropriate. (Emphasis added).
The time and place requirements for filing a petition to review are jurisdictional and must be strictly enforced. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193, 1194 (Colo.App. 1991). Thus, a petition to review must either be delivered to the designated ALJ’s office, or the certificate of mailing must demonstrate mailing to the correct office, within twenty days of the certificate of mailing of the ALJ’s order. Id.
at 1195.
The record as presently constituted does not reflect that a petition to review was either timely delivered or mailed to the ALJ at the Grand Junction address. Under these circumstances the matter must be remanded to the ALJ to determine whether the claimant filed a timely petition to review. The ALJ may, if necessary, hold a hearing to resolve any disputed issues of fact concerning this issue. If the ALJ determines that a timely petition to review was filed, the matter shall be transmitted to us to review the merits of the appeal. If no timely petition to review was filed the ALJ shall enter an order dismissing the petition to review.
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
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this order were mailed to the parties at the addresses shown below on March 17, 2004 by A. Hurtado.
Robert W. Moser, 8194 W. Quarto Ave., Littleton, CO 80128
The Home Depot, 16900 W. Colfax Ave., Golden, CO 80401
The Home Depot, 2455 Paces Ferry Rd. NW, Atlanta, GA 30339
Insurance Company of the State of Pennsylvania, c/o Mike McKenna, Sedgwick Claims
Management Services, Inc., 7400 E. Orchard Rd., #4015, Greenwood Village, CO 80111
Katherine Markheim Lee, Esq., 1700 Broadway, #1900, Denver, CO 80290-1901 (For Respondents)