W.C. No. 4-463-229Industrial Claim Appeals Office.
January 7, 2003
ORDER OF REMAND
This matter is before us to consider the claimant’s “Motion for Stay of Proceedings Before the Industrial Claim Appeals Office.” We remand the matter to consider the claimant’s request for an extension of time to file a brief and to procure a transcript of the hearing.
On July 2, 2002, Administrative Law Judge Felter (ALJ) entered a substantive order. The claimant filed a timely petition to review and designated a transcript of the hearing as part of the record on appeal. On September 24, 2002, a Legal Technician for the Division of Administrative Hearings (DOAH) mailed a letter to claimant’s counsel stating the claimant failed to pay a deposit required for preparation of the transcript and a transcript would not be “included as part of the record on appeal.” The letter granted claimant’s counsel 20 days to file a brief in support of the petition to review.
On October 3, 2002, claimant’s counsel filed a Motion for Extension of Time to file a brief. The motion stated a brief could not be prepared without benefit of the transcript, and that counsel had been out of state on family and business matters when the request for a deposit was received. Counsel requested an extension to file the brief until 30 days after the “transcripts are filed with the record on appeal.”
On October 17, 2002, the ALJ issued a handwritten ruling on the claimant’s request for extension. The ALJ wrote: “NO DEPOSIT FOR TRANSCRIPTS OF HRGS OPENING BRIEF EXTENDED TO 11-14-02.” The ruling also contains a stamp stating that the ruling was not mailed to the parties, but was served on claimant’s counsel by facsimile on October 18, 2002. The stamp directed claimant’s counsel to serve a copy of the order on the other parties.
On November 27, 2002, claimant’s counsel filed with DOAH a Motion for Extension of Additional Time. This motion states that counsel did not receive any response (including a fax) in response to the October 3 motion for extension of time. Consequently, on November 1, 2002, counsel spoke to a clerk at DOAH who advised him the motion had been granted, but did not advise counsel of the limitations imposed by the ALJ. Counsel further represents that he relied on the clerk’s representations, but when he did not receive any written confirmation of the ALJ’s ruling, he went to the DOAH on November 22, 2002, and procured a photocopy of the ALJ’s ruling. According to counsel that is when he first learned the ALJ ordered that the opening brief be filed by November 14. The November 27 motion for extension requests an extension to obtain the transcript and/or file an opening brief.
The matter was transmitted to the Industrial Claim Appeals Office (ICAO) on November 25, 2002. On December 12, 2002, the ICAO received the November 27 motion for extension of time which claimant’s counsel filed with the DOAH. DOAH did not rule on the motion, apparently because the matter was already transmitted to the ICAO.
On January 3, 2003, we received the claimant’s motion for stay of proceedings. The motion describes the history set forth above and requests that the proceedings before the ICAO be “held in abeyance” pending resolution of the claimant’s opportunity to procure a transcript and/or file a brief.
We conclude the matter must be remanded to the DOAH for consideration of the claimant’s request for extension of time to file a brief and procure a transcript. As an initial matter, we note that we have no jurisdiction to hold proceedings “in abeyance.” Time limits for the filing and processing of appeals are jurisdictional. See Industrial Claim Appeals Office v. Zarlingo, 57 P.3d 736 (Colo. 2002), Rice v. Industrial Claim Appeals Office, 937 P.2d 893 (Colo.App. 1997). Pursuant to §8-43-301(8), C.R.S. 2002, the ICAO must enter its order within 60 days of receipt of the record. The only basis for extending this time limit does not apply here. Section 8-43-301(9), C.R.S. 2002.
Under these circumstances, the matter must be remanded to the DOAH. First, we have held that Rule of Procedure VII (C)(2), 7 Code Colo. Reg. 1101-3 at 19, contemplates that before the DOAH determines that a request for transcript has been withdrawn, it must notify the parties that it is considering such action and afford the affected party an opportunity to show good cause for failure to pay the required deposit. Then an ALJ must determine whether good cause has been shown. Halsey v. University of Colorado Hospital, W.C. No. 4-474-058 (December 2, 2002); Koivu v. Fisher Chevrolet, Inc., W.C. No. 4-424-397 (October 16, 2002). Here, it does not appear the claimant was given the requisite notice. Further, it appears that a Legal Technician rather than an ALJ made the determination that the request for the transcript had been withdrawn.
Further, claimant’s counsel makes factual assertions concerning representations made to him regarding notice of the ALJ’s October 17, 2002, ruling establishing the date for filing the opening brief. These allegations, if determined to be true, could excuse counsel’s failure timely to file the opening brief in accordance with the ALJ’s order. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986) (due process requires that counsel be given timely notice of determinations affecting client’s rights).
IT IS THEREFORE ORDERED that the matter is remanded to the DOAH to determine whether the claimant is entitled to preparation of the transcript, and to determine whether the claimant is entitled to file a brief in support of the petition to review. If the claimant is permitted to file a brief, the respondents must be given an opportunity to file a new answer brief.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
Robert M. Socolofsky
Copies of this decision were mailed _______January 7, 2003_______ to the following parties:
Colin Anderson, 28628 Aspen Dr., Conifer, CO 80433
Cloverleaf Construction, Inc., P.O. Box 1475, Castle Rock, CO 80104-1475
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Bonner E. Templeton, Esq., 3801 E. Florida Ave., #900, Denver, CO 80210 (For Claimant)
Dawn M. Yager, Esq., 999 18th St., #3100, Denver, CO 80202
By: __________A. Hurtado__________