W.C. No. 4-244-932Industrial Claim Appeals Office.
July 25, 1996
FINAL ORDER
The claimant seeks review of a Summary Order of Administrative Law Judge Stuber (ALJ) dated October 3, 1995, which denied and dismissed the claim. We dismiss the appeal.
Following a hearing on October 3, 1995, the ALJ determined that the claimant did not sustain injuries arising out of and in the course of her employment, and therefore, the ALJ entered a Summary Order which denied the claim for workers’ compensation benefits. The Summary Order contains a certificate of mailing dated October 5, 1995. The order also explicitly states that the order is final, and not subject to review “unless a Request for Specific Findings of Fact and Conclusions of Law is filed . . . within fifteen (15) days from the date this decision is mailed.”
On October 23, 1995, the claimant filed a “Request for Specific Findings of Fact.” The respondents objected and moved for an order striking the Request. In support, the respondents argued that the Request was untimely. In reply, the claimant asserted that neither she nor her attorney of record received the Summary Order until October 12, 1995, and that pursuant to C.R.C.P. 6(e) service by mail is presumed to be received in 3 days. The claimant also argued that the Request was properly filed within 15 days of the date of receipt.
On November 16, 1995, the ALJ granted the respondents’ motion to strike the Request for Specific Findings and determined that the Summary Order is final. The claimant then filed a Petition to Review the Summary Order.
On appeal the claimant contends that the ALJ erred in finding that the claimant’s injuries did not arise out of and in the course of her employment. We conclude that we lack jurisdiction to review the ALJ’s Summary Order, and therefore, we do not consider the claimant’s substantive argument.
Section 8-43-215, C.R.S. (1995 Cum. Supp.), provides that at the conclusion of a hearing the ALJ shall issue a Summary Order. The statute also states:
“Said order shall be entered as the final award of the administrative law judge or director subject to review as provided in this article. 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. Such request shall be a prerequisite to a petition to review under section 8-43-301, and such request shall stay the time within which to file a petition to review until after the mailing of the specific findings and conclusions.” (Emphasis added).
The term “shall” is unambiguous. The American Heritage College Dictionary, Third Edition (1993), defines “shall” to be the expression of a requirement or obligation. See also Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995) (“shall” means a mandatory action). Therefore, in the context of § 8-43-215 the timely filing of a Request for Specific Findings of Fact is a jurisdictional prerequisite to the filing of a Petition for Review.
Here the ALJ determined that the claimant’s Request for Specific Findings of Fact was untimely, and we perceive no basis to interfere with the ALJ’s determination. The claimant does not deny receiving a copy of the Summary Order within 15 days of the date of the certificate of mailing of the Order. In fact, the claimant concedes that she had at least 8 days in which to file a timely Request for Specific Findings. Furthermore, the claimant asserts no reason why she was unable to file such a request within that time period. Under these circumstances, we are not persuaded that the claimant was denied notice of the Summary Order, or an adequate opportunity to request specific findings of fact. Compare Bowlen v. Munford, __ P.2d __ (Colo.App. No. 95CA1285, May 2, 1996) (where not received by claimant, mailing of Final Admission of Liability to employer’s premises was insufficient to satisfy claimant’s right to notice). Consequently, the claimant’s due process protections were not implicated.
Furthermore, the Court of Appeals has previously rejected the application of C.R.C.P. 6 (e) to claims in workers’ compensation. Digital Equipment Corporation v. Industrial Claim Appeals Office, 894 P. 54
(Colo.App. 1995). Therefore, we reject the claimant’s arguments which are based upon C.R.C.P. 6(e).
In any case, § 8-43-215 requires that the request for specific findings be filed within 15 days of the date the order is mailed and not within 15 days of the date it is received. Therefore, the fact that the claimant id not receive the Summary Order within 3 days of the date it was mailed did not preclude the ALJ from finding that the claimant failed to comply with § 8-43-215.
Moreover, in view of the ALJ’s determination that the claimant failed to meet the statutory prerequisite to appellate review, we lack jurisdiction to review the ALJ’s Summary Order. See Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984) (failure to file timely petition to review deprives us of jurisdiction because no appellate process initiated until timely document presented); Subsequent Injury Fund v. Industrial Claim Appeals Office (Colo.App. No. 92CA0556, February 25, 1996) (not selected for publication) (failure by SIF to follow proper sequence for review defeats jurisdiction of court to review appeal). Thus, we are compelled to dismiss the claimant’s appeal.
IT IS THEREFORE ORDERED that the claimant’s Petition for Review of the ALJ’s Summary Order dated October 3, 1995, is dismissed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 25, 1996 to the following parties:
Florence J. (Nita) Royce, 4512 Federal Blvd., Denver, CO 80211
Hemmeter Partners, LP, 1819 Denver West Dr., Ste. 200, Golden, CO 80401-3118
Argonaut Midwest Insurance Co., 8400 E. Prentice Ave., #1300, Englewood, CO 80111
Business Insurance Co., Attn: Erick Smith, P.O. Box 101630, Denver, CO 80250
Neil D. O’Toole, Esq., 226 W. Twelfth Ave., Denver, CO 80204 (For the Claimant)
Patricia Jean Clisham, Esq. Barbara Schuman Heckler, Esq., 1200 17th St., Ste. 1700, Denver, CO 80202 (For the Respondents)
BY: _______________________