W.C. No. 4-483-758.Industrial Claim Appeals Office.
September 20, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which granted the respondents’ motion to dismiss the claimant’s appeal of an order dated January 19, 2005. We affirm the order and remand the matter for further proceedings on the respondents’ request for attorney fees.
Section 8-43-301(2), C.R.S. 2005, provides that an ALJ’s order which denies benefits is final unless the party dissatisfied with the order files a petition to review within twenty days of the date of the certificate of mailing of the order. This requirement is jurisdictional and thus, the failure to file a timely petition to review precludes the Panel from reviewing the ALJ’s order. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
On January 19, 2005, the ALJ entered an order which denied workers’ compensation benefits for injuries sustained by the claimant. The order contains a certificate of mailing that it was mailed to the claimant’s attorney of record on January 20, 2005. Therefore, the ALJ’s order was final in the absence of the filing of a petition to review on or before February 9, 2005.
The claimant’s attorney filed a Petition to Review the January 19 order on February 19, 2005. The Petition acknowledges that the order was mailed on January 20.
The respondents subsequently moved for an order dismissing the Petition to Review as untimely. In response the claimant argued that § 8-1-102(2), C.R.S. 2005 not § 8-43-301(2), governed the claim because he sought relief in the nature of a declaratory judgment, certiorari or mandamus.
The ALJ implicitly rejected the claimant’s arguments. Therefore, on May 17, 2005, the ALJ dismissed the appeal with prejudice.
The claimant appealed the May 17 order. He argued that because he was never “served” with the January 19 order the time period for filing a petition to review was tolled. The claimant also renewed his contentions that the time limitations for filing a petition to review under § 8-43-301
were not applicable and that the January 19 order denying benefits was erroneous on the facts.
Initially, we find no merit in the claimant’s contention that §8-1-102(1) authorizes any appellate action by the Panel which is not expressly described in § 8-43-301. Section 8-1-102(1) provides that the Panel shall consist of 5 appeal examiners. Subsection (2) authorizes the Panel to conduct administrative appellate review of any order entered “pursuant to articles 43 and 74 of this title and to make a decision on said appeal.” However, § 8-1-102 does not provide any procedure for perfecting an appeal to the Panel.
To the contrary, § 8-43-301(2) is the exclusive means to perfect an appeal of an ALJ’s order to the Panel. Further, § 8-43-301(8) limits the Panel’s authority to affirm, correct, set aside or remand an ALJ’s order and only where the findings are insufficient to permit appellate review, conflicts in the evidence are not resolved, the findings are not supported by the record, the findings do not support the order or the order is not supported by applicable law.
Because the Petition to Review was filed 30 days after the date of mailing of the ALJ’s January 19 order, the order is final and, the ALJ did not err in dismissing the February 19, 2005 petition to review with prejudice.
In reaching our disposition we recognize the claimant’s contention that he was never personally “served” with a copy of the January 19 order. However, this argument was not raised before the ALJ in response to the respondents’ motion to dismiss the February 19 petition to review. Therefore, the argument is not properly before us. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
For their part the respondents request that we enter an order awarding attorney fees pursuant to § 8-43-301(14), C.R.S. 2005, on grounds the claimant’s appeal of the May 17 order was frivolous and interposed to harass, delay or unnecessarily increase the cost of litigation. We cannot say as a matter of law that the claimant’s petition to review was well grounded in fact or law. However, the claimant has not had an adequate opportunity to respond to the respondents’ request for the imposition of fees, and the request may involve issues of fact concerning counsel’s reasoning and motivation for filing the petition to review. Consequently, we conclude it is necessary to remand the matter to the ALJ with instructions to conduct appropriate proceedings, including a hearing if necessary, to resolve the respondents’ request for attorney fees. See Candelaria v. Summer Property Services, Inc., W.C. No. 4-430-934 (January 10, 2001).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 17, 2005 is affirmed and the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
_______________________________ Robert M. Socolofsky
Mary Patricia Brodeur, Elizabeth, CO, Interstate Distributor Company, Tacoma, WA, American Home Assurance, c/o Rusty Pinckney, AIG Claim Services, Shawnee Mission, KS, Chris L. Ingold, Esq., Denver, CO, (For Claimant).
Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).