W.C. No. 4-504-756.Industrial Claim Appeals Office.
March 9, 2006.
FINAL ORDER
The claimant seeks review of an order dated August 30, 2005 of Administrative Law Judge Friend (ALJ) that denied the claimant’s petition to reopen and the ALJ’s order dated December 12, 2005 that dismissed the petition to review as improperly filed. We affirm the order dated December 12, 2005, dismissing the petition to review the August 30, 2005 order.
The claimant suffered a compensable injury on June 5, 2001 and reached maximum medical improvement on March 2, 2002. The claimant filed a petition to reopen based upon a claim of worsening of condition. The ALJ entered an order dated August 30, 2005 in which he found that the claimant had not established by a preponderance of the evidence that the increased pain in his back was causally related to the admitted industrial injury. The ALJ’s order also provided that:
This decision of the Judge is final, unless a Petition to Review this decision is filed within twenty (20) days from the date this decision is mailed. Section 8-43-301(2), C.R.S. The Petition to Review must be filed with the Office of Administrative Courts, 633 17th St., Suite 1300, Denver, CO 80202.
On September 19, 2005, the claimant mailed a Petition for Review to the Division of Administrative Hearings at 222 S. 6th Street, Rm 414, Grand Junction, Co. 81501. The respondents raised the issue of the timely filing of the petition to review in their Brief in opposition to petition to review. In an order dated November 15, 2005 the ALJ entered an order granting the claimant 15 days to show why the petition to review should not be dismissed.
In an order dated December 12, 2005 the ALJ entered findings of fact that may be summarized as follows. The claimant mailed a petition to review on September 19, 2004 to the “Division of Administrative Hearings, 222 S. 6th St., Rm 414, Grand Junction, CO 81501.” The certificate of mailing does not indicate that a copy was mailed to 633 17th St., Suite 13000, Denver, CO 80202. The petition to review was received by the Grand Junction office on September 20, 2005. The petition to review was received by the Office of Administrative Courts at 633 17th St., Suite 1300, Denver, CO on September 23, 2005. The certificate of mailing does not indicate mailing to the address specified in the order. The petition to review was filed on the day it was received in Denver, September 23, 2005, more than 20 days from the date of the mailing of the Findings, of Fact, Conclusions of Law, and Order. Therefore, the ALJ ordered that the petition to review be dismissed with prejudice.
The claimant contends that his petition to review was properly filed under § 8-43-301(2) because a petition can be filed by mail if “mailed to the appropriate administrative law judge.” Section 8-43-301(2) provides that:
Any party dissatisfied with an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review with the director, if the order was entered by the director, or with the administrative law judge at the place indicated in the order, if the order was entered by the administrative law judge, and serve the same by mail on all the parties. Such petition shall be filed within twenty days from the date of the certificate of mailing of the order, and, unless so filed, such order shall be final. The petition to review may be filed by mail, and shall be deemed filed upon the date of mailing, as determined by the certificate of mailing, provided the certificate of mailing indicates that the petition to review was mailed to the appropriate administrative law judge or to the director, if appropriate. (emphasis added)
Therefore, the jurisdictional prerequisites for a petition to review are, in part, that it be filed “within twenty days from the date of the certificate of mailing of the order” and at the “place indicated in the order.” The failure to mail a petition to review to the address designated in an order therefore constitutes a jurisdictional defect. See Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). In the present case the petition filed by the claimant is addressed to ALJ Friend; however, it was not mailed to the “place indicated in the order” as provided for in § 8-43-301(2). The petition to review was therefore properly dismissed.
The statute requires that a petition to review be delivered to the correct location within the time limit. The following language from Buschmann v. Gallegos Masonry, Inc., supra, is pertinent:
Therefore, we hold that if a failure properly to mail or deliver a petition for review of an ALJ’s order in a workers’ compensation proceeding results in an untimely filing at the office indicated in the ALJ’s order, the petition is jurisdictionally defective and review on the merits is barred.
We disagree with the claimant’s further contention that he properly filed the petition to review pursuant to the relevant Workers’ Compensation Rule of Procedure. At the relevant time, Rule of Procedure VII(B)(3), 7 Code Colo. Reg. 1101-2 provided that: “A petition to review an order entered by an administrative law judge shall be filed at the place indicated in the order, or, if a place is not indicated, at the Division’s office in Denver.” (Since the time of the hearing in this matter, the rules of procedure have been renumbered. The present version of Rule VII(3), has in relevant part remained the same and is found in Office of Administrative Courts Rules of Procedure “OACRP” 26.)
Moreover, the Rules of Procedure adopted by the Director of the Division of Workers’ Compensation pursuant to her authority under § 8-47-107 C.R.S. 2005, may not expand, enlarge or modify the underlying statute the rule is intended to enforce, and any rule which is contrary to or inconsistent with the statute it is enacted to enforce is void. Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo App. 1997); Adams v. Department of Social Services 824 P.2d 83 (Colo.App. 1991). Because rules are invalid if inconsistent with the underlying statute the rule is designed to enforce, we must, where possible, construe the rule consistent with the enabling statute. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677
(Colo.App. 1997); Sterling v. Industrial Commission, 662 P.2d 1096 (Colo.App. 1982). In our view Rule Of Procedure VII(B)(3) is consistent with § 8-43-301(2) in requiring the appealing party to file the petition to review at the place indicated in the order, and nothing in the rule may be interpreted to permit filing contrary to the statute.
The claimant also contends that under § 8-43-301(4) the ALJ must transmit the file to the Industrial Claim Appeals Office within thirty days of the filing of the briefs by the parties. Because the respondent’s brief was filed on November 7, 2005 the claimant argues that the ALJ’s order of December 13, 2005 was inappropriate. However, § 8-43-301(4) also provides that after the briefs are filed the ALJ shall have thirty days to enter a supplemental order or transmit the file to the industrial claim appeals office. As noted, the ALJ did enter a supplemental order dated November 15, 2005, providing the claimant with time to show why the petition to review should not be dismissed. In any event, even assuming that the claimant’s argument in this regard has merit, and the file had been transmitted to us, we would necessarily have remanded the matter to the ALJ to enter findings of fact regarding whether the petition to review had been properly and timely filed. Klingensmith v. Vandergriff Construction, W.C. No. 4-348-444 (May 14, 1999). In either event, the result would have been the same.
To the extent that the case involves issues of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). We may not reweigh the evidence on appeal. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Here, we have reviewed the record and the ALJ’s findings of fact and conclusions of law made in the order of December 12, 2005, which dismissed the petition to review. The ALJ’s findings are sufficient to permit appellate review and the findings support the conclusion that the petition to review was not delivered to the correct location within the time limit. The ALJ correctly applied the law and did not err in dismissing the claim.
We do not have jurisdiction to review the ALJ’s order unless a timely petition to review was filed. Buschmann v. Gallegos Masonry, Inc., supra. Accordingly, we perceive no basis on which to disturb either of the ALJ’s orders. In view of our disposition we do not reach the claimant’s remaining arguments in his petition to review.
Finally, we note that on February 13, 2006, the respondents filed an unopposed motion for extension of time to file a brief in opposition to petition to review with the Office of Administrative Courts (OAC). Both the respondents’ brief and the claimant’s brief have been transmitted to us by the OAC. We presume from OAC’s transmittal of these to us that the respondents’ motion was granted and that both briefs are properly in the record. Both have been considered in resolving this appeal.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 12, 2005 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Howard Lambert, Aspen, CO, Doug Martin, SEMA Construction, Englewood, CO, Jeff Bassett, Zurich Insurance Company, Colorado Springs, CO, Luke A. Brennan, Esq., Grand Junction, CO, (For Claimant).
Frank M. Cavanaugh, Esq., Denver, CO, (For Respondents).