IN THE MATTER OF THE CLAIM OF BEN ABEYTA, Claimant, v. WACKENHUT SERVICES, Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-519-399Industrial Claim Appeals Office.
December 22, 2003

ORDER OF REMAND
The claimant and the respondents filed petitions to review an order of Administrative Law Judge Henk (ALJ). We remand the matter for clarification and completion of the briefing schedule.

On May 15, 2003, the ALJ entered an order awarding permanent partial disability (PPD) benefits, disfigurement benefits, and ongoing medical benefits. On May 30, 2003, the respondents filed a petition to review objecting to the award of PPD benefits. On June 2, 2003, the claimant filed a petition to review citing general allegations of error and reserving the right to “include further errors and objections.”

On July 15, 2003, the Division of Administrative Hearings (DOAH) issued a “Notice and Briefing Schedule” which was mailed to the attorneys for the parties. The notice stated that the record was complete and the “petitioner shall have twenty days after the date of the certificate of mailing of this notice to file a brief in support of the petition to review,” and that the opposing parties shall have twenty days after the mailing of the petitioner’s brief to file briefs in opposition.

Thereafter, the respondents requested two extensions of time to file a brief in support of their petition to review, and these requests were granted. The respondents then filed their brief on August 14, 2003. The claimant requested two extensions of time to file a brief in opposition to the respondents’ brief. Both of these motions noted the claimant had also filed a petition to review. The claimant’s requests for extension were granted and the claimant filed a brief in opposition to the respondents’ brief on October 15, 2003. The claimant has never filed a brief in support of his petition to review, nor has the claimant withdrawn his petition to review. Indeed, the claimant’s requests for extensions of time suggest that the claimant still intends to pursue his petition to review.

In our opinion, the DOAH notice and briefing schedule is ambiguous considering that there were two petitions to review filed. The notice, which addresses “the petitioner,” makes it unclear whether both the petitioning parties were expected to file simultaneous opening briefs, or whether the first petitioner (respondents) was being directed to file a brief with a separate briefing schedule to be established to govern the claimant’s petition.

Under these circumstances, the matter must be remanded to determine whether the claimant has withdrawn the petition to review, or had decided not to file a brief in support of the petition. If the claimant has not withdrawn the petition and desires to file a brief, the DOAH shall establish a briefing schedule concerning the claimant’s petition to review. Once these proceedings are complete, the matter shall be recertified for our review.

IT IS THEREFORE ORDERED that the matter is remanded to the DOAH for further proceedings consistent with the views expressed herein. Once the proceedings are complete, the matter shall be recertified for our review.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ David Cain
______________________________ Kathy E. Dean

Notice

Copies of this order were mailed to the parties at the addresses shown below on December 22, 2003 by A. Hurtado.

Ben Abeyta, 1265 S. Wyandot Way, Denver, CO 80223

Wackenhut Services, 10808 Highway 93, Unit B, Bldg. T119B, Golden, CO 80403

Legal Department, Pinnacol Assurance — Interagency Mail DIME Unit, Tower 2, #640, Division of Workers’ Compensation — Interagency Mail

Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80214 (For Claimant)

Anne Smith Myers, Esq. and Michelle N. Young, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)