W.C. No. 4-273-480Industrial Claim Appeals Office.
February 11, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wells (ALJ) which requires them to pay death benefits. We dismiss the appeal with prejudice.
In an order dated July 31, 1997, the ALJ determined that Carol Slaughter is the dependent, adult daughter of the decedent, and the decedent died as a result of injuries arising out of and the course of his employment. Therefore, the ALJ ordered the respondents to pay death benefits to Carol Slaughter.
The respondents timely filed a Petition for Review of the July order. The Petition asserted general allegations of error See § 8-43-301(8), C.R.S. 1997. The Petition also alleged that the ALJ lacked subject matter jurisdiction over the claim, and erroneously determined that the respondents are liable for an award under § 8-41-502 C.R.S. 1997, which pertains to death benefits for adult children.
Further, the respondents asserted that the ALJ erroneously failed to make a ruling concerning the admissibility of bank records which they offered to refute evidence that, at the time of death, the decedent was contributing $400 per month for Carol Slaughter’s support. The respondents also contended that if the ALJ excluded the records, he erred.
Thereafter, the matter was briefed. Significantly, the claimant concurred with the respondents’ request for an order concerning the admission of the bank records.
The ALJ issued a Supplemental Order on October 20, 1997, granting the request for admission of the bank records, but otherwise incorporating the July 31 order. The ALJ also found that the testimony of the claimant’s mother concerning the receipt of cash payments from the decedent in the amount of $400 per month is credible, and that consideration of the bank records does not change that determination. Consequently, the Supplemental Order adopted the prior award of death benefits.
On December 2, 1997, the respondents moved for an order forwarding the record to us for review of the July order. In so doing, the respondents concede that the Supplemental Order addressed “one of the several grounds for appeal that were subject of the Petition to Review.” However, the respondents contend that other grounds for appeal remain.
In response, the claimant asserts that the respondents failed timely to file a petition to review the Supplemental Order as required by § 8-43-301(6), C.R.S. 1997. Therefore, the claimant argues that the Supplemental Order is final and not subject to review. We agree with the claimant.
Section 8-43-301(6) provides that a party dissatisfied with a supplemental order must file a petition to review within twenty days of the mailing of the supplemental order. Absent the filing of a timely petition for review of a supplemental order, we lack jurisdiction to review the ALJ’s order. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991); Nelson v. King Soopers, Inc., 703 P.2d 1338 (Colo.App. 1985).
In this case, the ALJ’s Supplemental Order was issued in response to the respondents’ petition for review of the July order. The Supplemental Order was mailed on October 28, 1997, and therefore, the respondents were required to file a petition to review no later than November 17, 1997, to preserve their remaining arguments. See Memorial Hospital v. Industrial Claim Appeals Office, (Colo.App. No. 88CA0284, November 3, 1988) (not selected for publication); Castro v. Wedgewood, Ltd., W.C. No. 4-144-839, (October 14, 1993). No petition to review the Supplemental Order was filed by November 17. Consequently, the Supplemental Order is final, and we lack jurisdiction to review the order.
However, relying upon Michalski v. Industrial Claim Appeals Office, 757 P.2d 1146 (Colo.App. 1988), the respondents contend that they were not required to file a petition to review the Supplemental Order. We disagree.
In Michalski, both the claimant and the respondents filed a petition to review an ALJ’s order. The ALJ issued a “supplemental order” which addressed an issue raised by the respondents, but left all of the issues raised by the claimant unresolved. The court held that, because the ALJ chose not to “supplement” his order concerning the claimant’s arguments, the claimant’s petition to review remained pending. The court reasoned that, under these circumstances, it would have been “duplicative and superfluous” for the claimant to file a petition to review the Supplemental Order. Thus, none was required.
Here, unlike the situation in Michalski, there is no dispute that the Supplemental Order addressed one of the arguments raised by the respondents’ appeal. The ALJ granted the respondents’ request for the admission of the decedent’s bank records. Moreover, the ALJ otherwise reinstated the July 31 order. Thus, the ALJ did not leave all of the appellate issues unresolved, and the claim is factually distinguishable from Michalski. Memorial Hospital v. Industrial Claim Appeals Office, supra (respondents’ failure to file petition to review supplemental order was fatal where supplemental order addressed one issue raised in petition to review, but otherwise reinstated original order).
Moreover, we reject the respondents’ argument that the October 20, 1997 order is not a “supplemental order” under §8-43-301(5), because the ALJ did not make new “conclusions of law.” Section 8-43-301(5) does not require the ALJ to make new “conclusions of law.” Rather, the statute provides that “if it has not already been done” the ALJ shall make “findings of fact and conclusions of law” to support the order. Here, the ALJ issued “Specific Findings of Fact and Conclusions of Law” on July 31, 1997.
IT IS THEREFORE ORDERED that the respondents’ appeal is dismissed with prejudice.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed February 11, 1998 to the following parties:
Carol Slaughter, Steve U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940
Schneider National Carriers, Inc., P.O. Box 2415, Green Bay, WI 54306-2415
Pacific Employer Insurance Co., P.O. Box 2941, Greenwood Village, CO 80150-0141
Steven U. Mullens, Esq., P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
W. Berkeley Mann, Jr., Esq., 4582 S. Ulster St., #906, Denver, CO 80237 (For the Respondents)
BY: ________________________________