W.C. No. 4-493-692Industrial Claim Appeals Office.
July 31, 2003
ORDER OF REMAND
This matter is before us to consider the pro se claimant’s written correspondence dated July 22, 2003. We remand the matter for a determination of whether the claimant has shown good cause to file a late designation of the record and request for preparation of the transcript, and for filing a brief in support of the petition to review.
On May 5, 2003, Administrative Law Judge Jaynes (ALJ) entered an order denying the claim for workers’ compensation benefits, and the order was mailed May 7. On May 15, 2003, the claimant filed a timely petition to review the order citing specific alleged errors in the proceedings and the findings. The record does not reflect that the claimant filed a written designation of record or request for preparation of the hearing transcript.
The claimant did not file a brief in support of the petition to review. On June 24, 2003, the respondents filed a brief in opposition to the petition to review. The respondents’ brief states that on May 15, 2003, the dispute resolution unit of the Division of Workers’ Compensation issued a letter stating the record was complete and establishing a briefing schedule. However, no such letter is contained in the record. On June 25, 2003, the ALJ transmitted the matter for our review.
On July 2, 2003, a staff member of the Industrial Claim Appeals Office (ICAO) sent a letter to the parties notifying them that the record had been received, and that the record does not contain a brief from the claimant as the appealing party. The letter requested submission of a copy of the brief if one had already been filed.
On July 11, 2003, the claimant contacted the staff of the ICAO and stated she had not filed a brief because she was unable to procure a transcript. The claimant was advised that the ICAO could not offer legal advice, but if the claimant believed she was entitled to a transcript and to file a brief she should submit her arguments in writing and provide a copy to the respondents’ counsel.
On July 22, 2003, the claimant submitted a letter to the ICAO stating that she was unable to purchase the transcript and file a brief to complete the appeals process. The claimant further stated that she called a telephone number (presumably at the Division of Administrative Hearings) and left messages “several times to the menu option for transcripts.” However, the claimant stated, she never received a return call regarding “the amount” and was unable to purchase the transcript or prepare a brief.
The respondents filed an objection to the claimant’s “motion” and a request to strike the claimant’s July 22 correspondence. The motion states the claimant’s assertions in the letter are not part of the record and should not be considered. Further, the respondents argue the claimant failed to follow the applicable procedures for requesting a transcript, failed to request an extension of time to procure the transcript, and should be held accountable for her actions.
We conclude the matter must be remanded to the ALJ to determine whether the claimant has shown good cause for permitting a late designation of the record and request for a transcript. Section 8-43-301(2), C.R.S. 2002, provides that at the “same time” a petition to review is filed, the petitioner shall “order any transcript relied upon for the petition to review, arrange with the hearing reporter to pay for the same, and notify the opposing party of the transcript ordered.” Rule of Procedure VII (B)(1) (b), 7 Code Colo. Reg. 1101-3 at 18, provides that a petition to review shall “include a designation of record which specifies the exact hearing date for any transcript being ordered and the name of the court reporter preparing the transcript.”
However, the failure to file a specific designation of record and order a transcript contemporaneously with the filing of the petition to review is not jurisdictional. See Martinez v. Industrial Commission, 709 P.2d 49
(Colo.App. 1985) (under prior statute, a petition to review which set forth specific objections to the order was not jurisdictionally defective because it did not contain specific references to the transcript nor a “separate motion” for preparation of the transcript). Because failure to designate the record and request a transcript are not jurisdictionally fatal to an otherwise timely appeal, the ALJ has authority to grant extensions of time for taking these actions upon good cause shown. Section 8-43-207(1)(i), C.R.S. 2002.
Here, we understand the claimant to be alleging that she was prevented from filing a timely designation of record and request for preparation of the transcript because, despite her efforts, the responsible department of the government failed timely to respond to her telephone requests for necessary information. In our view, such evidence, if credited, could provide the basis for finding the claimant showed good cause for an extension of time to designate the record and obtain a transcript.
Consequently, the matter must be remanded to the ALJ for a determination of whether the claimant has shown good cause for filing a late designation of record and request for a transcript. In this regard, we note the claimant’s account of events may not be discredited without holding a hearing. See Trujillo v. Industrial Commission, 735 P.2d 211
(Colo.App. 1987). Further, we lack jurisdiction to resolve the factual issues raised by the parties. See § 8-43-301(8), C.R.S. 2002.
In reaching this result, we express no opinion concerning the factual representations of the parties. Further, the question of whether the claimant demonstrates good cause is ultimately a discretionary determination for the ALJ, and we should not be understood to express an opinion on that issue. If the ALJ does determine the claimant has shown good cause for filing a late designation of record and request for a transcript, the ALJ shall insure that proper notice of the briefing schedule is provided when the record is complete. Section 8-43-301(4), C.R.S. 2002; Rule of Procedure VII (D)(1), 7 Code Colo. Reg. 1101-3 at 19. If the ALJ determines that good cause has not been shown, the matter shall be transmitted for our 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
___________________________________ Bill Whitacre
Copies of this decision were mailed July 31, 2003 to the following parties:
Susan Barron, 134 E. 18th, No. F, Tulsa, OK 74119
State of Colorado Department of Law, 1525 Sherman St., 5th Floor, Denver, CO 80203
Legal Department, Pinnacol Assurance — Interagency Mail
Craig H. Russell, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
By: A. Hurtado