W.C. Nos. 4-420-238, 4-460-875, 4-417-597Industrial Claim Appeals Office.
December 4, 2002
ORDER OF REMAND
EMC Insurance Company (EMC) and the Insurance Company of North America (ICNA) separately seek review of an order of Administrative Law Judge Coughlin (ALJ) which determined the claimant suffered a compensable occupational disease and awarded medical benefits. We remand the matter for a determination of whether ICNA timely appealed.
Based on evidence presented at a hearing on November 11, 2001, the ALJ I issued an order dated December 31, 2001, which determined the claimant suffered work-related bilateral carpal tunnel syndrome. The ALJ also found the claimant was last injuriously exposed and suffered a substantial, permanent aggravation when ICNA was the employer’s insurer for workers’ compensation. Consequently, the ALJ held ICNA responsible for the occupational disease and ordered ICNA to pay medical benefits. (See Finding of Fact 18).
On January 23, 2002, EMC filed a petition to review. EMC subsequently filed a brief in support of the petition. ICNA filed a separate brief. After the filing of opposition briefs, the matter was transmitted to us for review.
Section 8-43-301(2), C.R.S. 2002, requires any party dissatisfied with an order of the ALJ to file a petition to review within twenty days of the date of the certificate of mailing of the order. Failure to file a timely petition to review deprives us of jurisdiction to review the ALJ’s order. Schneider National Carriers, Inc. v. Industrial Claim Appeals Office, 969 P.2d 817 (Colo.App. 1998); Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). Furthermore, jurisdiction may not be conferred by waiver, consent, or estoppel. Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984).
The record transmitted to us on review does not contain a petition to review from ICNA. Therefore, it is necessary to remand the matter for further proceedings to determine whether ICNA filed a timely petition to review the December 31, order. See Pueblo School District No. 60 v. Clementi, 776 P.2d 1152 (Colo.App. 1989); Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987).
For purposes of our remand, we note that the certificate of mailing on the December 31 order states the order was mailed “January 2002.” Thus, it is unclear when the 20-day period provided by § 8-43-301(2) for filing a petition to review commenced.
We also note that under § 8-43-301(2), the petitioning party shall order any transcript relied upon for the petition to review “at the same time” the petition to review is filed. On January 17, 2002, the attorney for ICNA wrote a letter which requested preparation of the November 11 hearing transcript. However, the letter does not list any “particular errors and objections” as required by § 8-43-301(2). Under these circumstances, we decline to conclude as a matter of law that the letter is a sufficient petition to review.
On remand, the ALJ shall determine whether ICNA filed a timely petition to review the December 31 order. If the ALJ finds ICNA timely filed a petition to review the December order, the record shall be completed to include a copy of the petition to review and the ALJ shall immediately retransmit the record to us for review. If the ALJ determines a timely petition to review was not filed, the ALJ shall dismiss the ICNA’s appeal of the December order and retransmit the matter to us for consideration of EMC’s petition to review.
In remanding the matter, we recognize that the ALJ purportedly entered a “Supplemental Order” on August 15, 2002, which ICNA appealed. However, under § 8-43-301(5), C.R.S. 2002, an ALJ is only afforded 30 days from the date briefs are filed or the time for filing briefs has run to issue a supplemental order. If no supplemental order is issued during this period, the file must be transmitted to us for review.
A notice of briefing schedule was issued on May 2, 2002 to counsel for ICNA. There is no record of a second briefing schedule to EMC. An extension was granted to June 12, 2002, for filing of briefs in support of the petitions to review. Opposition briefs were due 20 days later. Accordingly, the time for filing briefs expired July 2, 2002, and the ALJ’s jurisdiction to issue a supplemental order expired August 2, 2002. Consequently, the August 15, 2002 Supplemental Order is void for lack of jurisdiction.
IT IS THEREFORE ORDERED that the matter is remanded to the Division of Administrative Hearings to determine whether ICNA filed a timely petition to review the order dated December 31, 2001.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
Copies of this decision were mailed December 4, 2002 to the following parties:
John Davis, 29721 E. 128th Ave., Commerce City, CO 80022
Human Resources/Personnel, The Hullinger Group/North American Truck Trailer, 4500 North Cliff, Sioux Falls, S.D. 57104
Insurance Company of North America, c/o Wes Johnson, ACE/ESIS, P. O. Box 911, Portland, OR 97207
Ginger Cook, Argonaut Insurance Co., 5690 DTC Blvd., #290 West, Englewood, CO 80111
Terri Lynn Vink, EMC Insurance Company, P. O. Box 441098, Aurora, CO 80044-1098
Erica West, Esq., 837 E. 17th Ave., #102, Denver, CO 80218 (For Claimant)
Richard A. Bovarnick, Esq. and Tiffany L. Scully, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents The Hullinger Group and Insurance Company of North America)
Jeffrey J. Cowman, Esq., 1899 Wynkoop St., #700, Denver, CO 80202 (For Respondents The Hullinger Group and Argonaut Insurance Company)
Lynda S. Newbold, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents The Hullinger Group/Volvo Trucks of Colorado and EMC Insurance Company)
BY: A. Hurtado