W.C. No. 4-504-184.Industrial Claim Appeals Office.
September 11, 2003.
ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ). We remand the matter for further proceedings.
On March 12, 2003, the claimant filed a Petition to Review an order dated February 27, 2003. A notice of briefing schedule was issued which required the claimant to file a brief in support of the Petition to Review by May 29, 2003. However, the record reflects the claimant was granted an extension of time until June 20, 2003 to file a brief.
No briefs were filed, and the ALJ transmitted the matter for review on July 17, 2003.
On July 24, 2003, we received the claimant’s Motion for Remand. The claimant requests an order remanding the matter to the ALJ for consideration of a June 20, 2003 motion for another extension of time to file a brief, and the ALJ’s reconsideration of a similar motion dated July 21, 2003. The latter motion was denied based on the ALJ’s determination that the first extension had expired and the July 21 motion was filed after the ALJ had determined to transmit the file to this office.
The record transmitted to us on review does not contain a motion for extension dated June 20, 2003. Further, the ALJ’s order dated July 22, 2003, which denied the claimant’s July 21 motion for an extension of time, does not mention a June 20 motion.
However, the claimant has made a factual assertion, which if true, establishes that she filed a timely request for an extension of time, which has not been considered by the ALJ. See Mountain States Telephone and Telegraph Co. v. Department of Labor and Employment, 184 Colo. 334, 520 P.2d 586 (1974). We have no authority to accept or reject the factual assertions on review. See § 8-43-301(8), C.R.S. 2002 (restricting the Panel’s authority concerning factual matters to a review of the ALJ’s findings); Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987). Under these circumstances, the matter must be remanded to the ALJ to conduct further proceedings concerning the claimant’s assertion that a timely request for another extension was filed. Although the ALJ’s transmission of the file could be construed as a denial of all further extension requests, see Raffaelo v. Industrial Commission, 670 P.2d 805
(Colo.App. 1983), under the circumstances here, it is not clear to us that the ALJ was aware of a June 20 request for an extension of time to file a brief in support of the Petition to Review.
On remand, the ALJ shall determine whether the claimant filed a motion on June 20, 2003 for an extension of time to file a brief, and if so, the ALJ shall enter an order either granting or denying the motion. Based on that determination, the ALJ shall reconsider the July 21 motion for an extension.
If the ALJ grants the June 20 and July 21 motions, a new briefing schedule shall be established which affords the respondents an opportunity to respond to the claimant’s brief. The ALJ shall then take further action as provided by § 8-43-301(5), C.R.S. 2002. However, if the ALJ determines there was no timely filed motion to extend the claimant’s time for filing a brief beyond June 20 or the ALJ denies the claimant’s motions, the ALJ shall enter an order to that effect and immediately retransmit the record to us for review.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ for further proceedings consistent with this order.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
Copies of this decision were mailed September 11, 2003 to the following parties:
Estate of Donna Smith, c/o William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349
Hewlett-Packard Company, 4920 Centennial Rd., Colorado Springs, CO 80919
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
BY: A. Hurtado