W.C. Nos. 4-614-843, 4-614-843.Industrial Claim Appeals Office.
February 8, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated October 29, 2007 that determined the claimant did not timely file his petition to review and dismissed the petition. We affirm.
The ALJ entered an order dated September 7, 2007 and mailed to the parties on September 12, 2007 that denied the claimant’s request for permanent total disability benefits. The ALJ’s order also provided that the decision became final unless a petition to review was filed within 20 days from the date the decision was mailed. The order further provided that the petition to review must be filed with the Office of Administrative Courts (OAC), 633 17th St., Suite 1300, Denver, CO 80202. The claimant filed a “Brief In Support Of Claimant’s Petition To Review” with a certificate of mailing to the OAC office in Grand Junction, Colorado. There appears to be no dispute that the pleading was received by the Grand Junction office of OAC on October 2, 2007, on the twentieth day after the ALJ’s order was mailed. However, the ALJ also found that the pleading was not received in the Denver office of OAC until October 9, 2007, apparently relying on the date stamp on the pleading. The claimant appears to question the finding on when the pleading was received in the Denver office.
Citing Lambert v. Sema, W. C. No. 4-504-756 (March 9, 2006), the ALJ determined that a petition to review may be filed by mail, and is deemed to be 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 appropriated administrative law judge at the place indicated in the order. The ALJ found that the petition to review was not filed on the date it was mailed, but rather on October 9, 2007, when it was
Page 2
actually received at the address specified in the order at the OAC office in Denver. The ALJ found that the pleading was not filed until 27 days after the order was mailed to claimant’s counsel. The ALJ dismissed the petition to review because it was not timely filed.
I.
On appeal, the claimant first contends that he has complied with the statutory requirements in filing his petition to review. The claimant argues that because the ALJ found that his pleading was received by the Grand Junction office within 20 days that he has complied with the mandatory requirements of the statute relating to petitions for review. We disagree.
Section 8-43-301(2) C.R.S. 2007 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 constitutes a jurisdictional defect. See Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). In the present case the pleading filed by the claimant was not mailed to the “place indicated in the order” as provided for in § 8-43-301(2) Lambert v. Sema, supra.
The statute requires that a petition to review be delivered to the correct location within the time limit. The following language fro Buschmann v. Gallegos Masonry, Inc., is pertinent:
Page 3
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.
Buschmann, 805 P.2d at 1195. Therefore, in our view the fact that the claimant’s pleading was received within 20 days in the office of OAC in Grand Junction does not establish that he has complied with the statutory requirements in filing his petition to review.
II.
The claimant next contends that he substantially complied with §8-43-301(2) because he certified that he sent his pleading to the Office of OAC in Grand Junction. We again disagree.
The claimant has cited a number of cases in which substantial compliance with mailing and filing requirements have been found. However, this situation is indistinguishable from that in Buschmann v. Gallegos Masonry, Inc., where the address designated by the ALJ, and the address utilized by the claimant, were in different cities. See Matter of the Claim of Cordle (Deceased) v. Academy Roofing, Inc., W.C. No. 4-158-908 (June 9, 1995). Therefore, we are compelled to appl Buschmann to the facts of this case.
III.
The claimant also contends that the ALJ’s order of September 12, 2007 is in the nature of a Supplemental Order, rather than an “original order,” and is controlled under subsection (6), rather than subsection (2), of § 8-43-301. The claimant argues that under § 8-43-301(6) a petition to review need only be filed with “the Division” which was done in the present case. We again disagree.
As noted by the ALJ, § 8-43-301(5) provides that an ALJ may issue a supplemental order “labeled as such limited to the matters raised in the petition to review.” Here, the order of September 12, 2007 was not labeled as a supplemental order.
Further, under § 8-43-301(4), the ALJ has 30 days after all briefs are filed to enter a supplemental order or to transmit the file to the Panel for review. This was not the case here. In addition, as stated above, § 8-43-301(5) provides that, in ruling on a petition to review, the ALJ may issue a supplemental order, labeled as such, limited to the matters raised in the petition to review. Thus, the issuance of a supplemental order is discretionary. See Broadmoor Hotel and Continental Ins. Co. v. Industrial Claim Appeals, 939 P.2d 460 (Colo.App. 1996).
Page 4
Here, the ALJ’s order of September 12, 2007 was not a discretionary, supplemental order. Instead, the order was issued as the result of a remand. The order was not entered as a result of a petition to review and was not limited to the matters raised in any petition to review. In our opinion, the ALJ’s order of September 12, 2007 cannot be viewed as a supplemental order.
IV.
The claimant further contends that the ALJ’s finding that the Denver office of OAC did not receive the claimant’s Brief in Support of Petition to Review until October 9, 2007 denied him the opportunity to contest the accuracy of this fact. The claimant argues that while it is certainly feasible that the Denver office did not receive the pleading until October 9 2007, additional investigation might reveal that it was received earlier. Therefore, the claimant argues that he was denied due process by the ALJ.
Here, the respondents filed a Motion to Strike Claimant’s Brief In Support Of Petition To Review. The respondent’s motion argued that the claimant’s Brief in Support of Petition to Review should be stricken on a number of grounds including that the pleading was mailed to an incorrect address and not timely filed. In the motion to strike the respondents cited Buschman v. Gallegos Masonry. The claimant had an opportunity to respond to the respondents’ Motion to Strike and did respond. In his response to the respondents’ motion to strike the claimant raised most of the issues he has raised here, but failed to raise the issue of when his petition to review was actually received in the Denver office of OAC.
By analogy, non-moving parties clearly have an obligation to bring disputed issues of fact to the attention of a judge ruling on a motion for summary judgment. See Roberts v. American Family Mut. Ins. Co. 144 P.3d 546 (Colo. 2006). We also note that the OAC has promulgated a procedural rule authorizing summary judgment in workers’ compensation proceedings. OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts’ Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 8. OACRP Rule 17 provides that when an objection to a motion for summary judgment is filed and there is a disputed issue of material fact, the objection must specifically identify the disputed issue of material fact.
We realize that in general, judgment on the pleadings and supporting documents is only appropriate when no genuine issue exists as to any material fact. See Brodeur v. American Home Assurance Co., 169 P.3d 139
(Colo.App. 2007). We further realize that here the ALJ, sua sponte, determined that the pleading was actually received by the OAC at the address specified in Denver on October 9, 2007, 27 days after the original order was mailed to the claimant’s counsel. However, the claimant was given an opportunity to
Page 5
be heard regarding the respondents’ motion to dismiss. The claimant did not raise the question of whether a genuine issue existed as to any material fact regarding the timing of receipt of the pleading in the Denver office of OAC. Further, the claimant never argued before the ALJ that his pleading was ever actually received by the Denver office of OAC. Even at this time, the claimant can only suggest that, considering the pleading was received on the last possible day in Grand Junction, additional investigation may reveal that it was faxed to the Denver office the same day it was received by the Grand Junction office, in which case the claimant’s Petition should not be dismissed.
A party’s right to procedural due process is met if the party is provided with notice and an opportunity to be heard. Public Util. Comm’n v. Colorado Motorway, Inc., 165 Colo. 1, 10, 437 P.2d 44, 48 (Colo. 1968). The essence of procedural due process is fundamental fairness City County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). Under the circumstances here, we cannot say that the claimant was denied due process.
In any event, the argument that the respondents’ motion to strike should not be granted because his pleading might have been timely received at the Denver office of OAC was not raised by the claimant before the ALJ. Therefore, the argument appears to have been raised for the first time on appeal. Johnson v. Industrial Commission, 761 P.2d 1140
(Colo. 1988); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 29, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Page 6
FRED S POOLE, PO BOX 1273, BAYFIELD, CO, 81122 (Claimant)
PINNACOL ASSURANCE, C/O: HARVEY D FLEWELLING, 7501 E LOWRY BLVD, DENVER, CO, 80230 (Insurer)
ELLIOTT S BLOODSWORTH, C/O: DAWES AND HARRISS PC, 572 EAST THIRD AVENUE, DURANGO, CO, 81301 (For Claimant)
RUEGSEGGER, SIMONS, SMITH STERN, LLC, Attn: CRAIG R. ANDERSON, ESQ., 102 S. TEJON ST, STE 650, COLO SPGS, CO, 80903 (For Respondents)
PINNACOL ASSURANCE, Attn: LAURA AMIGROUD, P O BOX 469011, DENVER, CO, 80246-9011 (Other Party)
CRAIG R ANDERSON, Attn: SMITH STERN LLC, C/O: RUEGSEGGER, SINOMS,, 102 S TEJON #650, COLORADO SPRINGS, CO, 80903 (Other Party 2)