W.C. No. 4-491-465Industrial Claim Appeals Office.
February 24, 2003
ORDER
This matter is before us to consider the Claimant’s Motion for Extension of Time to File Brief and or Late Filing of Brief. We remand the matter to determine whether the claimant should be permitted to file a brief in support of the petition to review, and for the respondent to file a brief in opposition if necessary.
On June 3, 2002, Administrative Law Judge Muramoto (ALJ) entered an order awarding permanent disability benefits under the schedule. The claimant filed a timely petition to review and requested preparation of a transcript. The claimant did not file a brief in support of the petition to review, but the respondent filed a brief in opposition on January 14, 2003. The ALJ then transmitted the file to us on January 21, 2003, and the file was received by the Industrial Claim Appeals Office (ICAO) on January 22, 2003.
On February 10, 2003, the ICAO sent a letter to the parties notifying them of receipt of the file, and noting that the file did not contain a brief from the claimant. On February 20, 2003, the claimant’s counsel filed the motion for extension of time to file a brief. The motion states the claimant “does not believe that they [sic] received the briefing schedule and did not know” a brief was due. The claimant requests 30 days to file a brief in support of the petition to review.
Initially, we note that any final order entered by the ICAO must be issued on or before March 24, 2003. Section 8-43-301(8), C.R.S. 2002. Consequently, allowing 30 days to file a brief would not afford us sufficient time to review the case, nor would it afford the respondent an opportunity to file a brief in opposition to any specific arguments raised by the claimant. Thus, we deny the request to file a brief.
However, the matter must be remanded to the ALJ to determine whether the claimant should be afforded an opportunity to file a brief. Claimant’s counsel represents that he did not receive any notice that the transcript was complete and that an opening brief was due. Such notice is required by § 8-43-301(4), C.R.S. 2002, and Rule of Procedure VII (D)(1), 7 Code Colo. Reg. 1101-3. Upon review of the record, we are unable to find any evidence that the required notice was sent to the parties.
Under these circumstances, the matter must be remanded to the ALJ to determine whether or not the claimant received the requisite notice and should be permitted to file a brief in support of the petition to review. If the claimant is granted the opportunity to file a brief, the respondent should be afforded the opportunity to file a brief in opposition. See Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986) (attorney must be given notice of critical legal determinations in order to protect the client’s rights).
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ to determine whether the claimant is entitled to file a brief, and to permit the respondent to file a brief if necessary. When the required determinations and proceedings have been completed, the matter shall be transmitted to the ICAO for further review.
INDUSTRIAL CLAIM APPEALS PANEL
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David Cain
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Robert M. Socolofsky
Copies of this decision were mailed _______ February 24, 2003 _ to the following parties:
Patrick Cass, 1091 Sir Galahad Dr., Lafayette, CO 80026
Kaiser-Hill Company, L.L.C., c/o Albert Jerman, 10808 Hwy. 93, Unit B, Bldg. No. 850, Golden, CO 80403-8200
Stacy Strickland, G. E. Young, Inc., 4251 Kipling St., #510, Wheat Ridge, CO 80033
John G. Taussig, Jr., Esq., 1919 14th St., #805, Boulder, CO 80302 (For Claimant)
Benjamin E. Tracy, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondent)
By: ________A. Hurtado_________________