W.C. No. 4-500-892Industrial Claim Appeals Office.
December 8, 2003
ORDER OF REMAND
The respondents and the claimant, Ella Rosalie Steele n/k/a Ella Petta separately seek review of an order of Administrative Law Judge Mattoon (ALJ) which awarded the claimant death benefits. The respondents contend the ALJ erroneously awarded death benefits based on the maximum rate allowed by law. The claimant contends the ALJ erroneously denied her request for death benefits after September 27, 2001. We remand the matter to the ALJ to determine whether the respondents filed a timely petition to review.
Although the parties have not raised this issue in their briefs, we do not have jurisdiction to review the ALJ’s order unless a timely petition to review was filed. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193
(Colo.App. 1991); Hasbrouck v. Industrial Commission, 685 P.2d 780
(Colo.App. 1984). Further, jurisdiction may not be conferred by waiver or estoppe . Hasbrouck v. Industrial Commission, supra. Section 8-43-301(2), C.R.S. 2003, provides that a petition for review must be filed “within twenty days from the day of the certificate of mailing of the order.”
The ALJ’s order dated May 19, 2003 contains a certificate of mailing indicating that it was mailed to the parties of record on May 20, 2003. 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. Consequently, the respondents were required to file a petition to review no later than June 9, 2003.
The record transmitted to us on review does not contain a petition to review from the respondents. Under these circumstances, the matter must be remanded to the ALJ to determine whether the respondents filed a timely petition to review the May 19, 2003 order.
We note that the claimant’s appeal involves similar issues. Consequently, for purposes of judicial economy we defer consideration of the claimant’s petition to review until it is determined whether the respondents timely filed a petition to review the ALJ’s order.
If, on remand, the ALJ determines that a timely petition to review was not filed by the respondents, the ALJ shall dismiss the respondents’ appeal and transmit the matter for our consideration of the claimant’s petition to review. However, if the ALJ determines that a timely petition to review was filed, she shall retransmit the matter for our review of both parties’ appeals.
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
______________________________ Kathy E. Dean
______________________________ Robert M. Socolofsky
Copies of this order were mailed to the parties at the addresses shown below on December 8, 2003by A. Hurtado.
Ella Rosalie Petta, 5443 So. 5425 West, Kearns, UT 84108
Richard Steele, 5443 So. 5425 West, Kearns, UT 84108
Paul Petta, Randall Petta, and Brian Petta, 5443 So. 5425 West, Kearns, UT 84108
Ol’Sarge d/b/a Subway, P. O. Box 220-PMB, Woodland Park, CO 80866-0241
Mid-Century Insurance Co., 7535 E. Hampden Ave., #300, Denver, CO 80231
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)