W.C. No. 3-050-261Industrial Claim Appeals Office.
February 2, 1999.
ORDER OF REMAND
The pro se claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which denied his petition to reopen. We remand the matter to the ALJ to determine whether the claimant filed a timely petition to review.
The ALJ’s order contains a certificate of mailing indicating that it was mailed to the claimant’s address of record on September 25, 1998. The order also contains a notice that it will become final unless a petition to review is filed within twenty days of the mailing date at the ALJ’s office in Grand Junction, Colorado.
Under the statute, a petition to review the ALJ’s order had to be filed by October 15, 1998. The claimant’s petition to review is dated October 16, 1998, and bears a date stamp indicating that it was received at the ALJ’s office on October 19, 1998.
Section 8-43-301(2), C.R.S. 1998, provides that a party must file a petition to review “within twenty days from the date of the certificate of mailing of the order, and, unless so filed, such order shall be final.” The failure to file a timely petition to review deprives us of jurisdiction to review the ALJ’s order Buschmann v. Gallegos Masonry, 805 P.2d 1193 (Colo.App. 1991).
Here, the claimant’s petition to review is dated one day past the statutory time limit for filing and the record indicates it was not received until four days past the time limit. Under these circumstances, the matter must be remanded to the ALJ to determine whether the claimant filed a timely petition to review the September 25 order. If the ALJ determines that a timely petition to review was not filed, he shall dismiss the claimant’s appeal. If the ALJ determines that a timely petition to review was filed, he shall retransmit the matter 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
NOTICE
Copies of this decision were mailed February 2, 1999
the following parties:
Peter Gina, PO Box 10816, Aspen, CO 81612
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., Suite 100, Englewood, CO 80112
David G. Kroll, Esq., 1120 Lincoln St., Suite 1606, Denver, CO 80203 (For Respondents)
BY: ________________