W.C. Nos. 4-387-796, 4-329-457Industrial Claim Appeals Office.
January 28, 2002
ORDER OF REMAND
The claimant and the respondents have separately petitioned to review an order of Administrative Law Judge Stuber (ALJ) dated June 12, 2001. We remand the matter for determination of and completion of the briefing schedule.
On June 14, 2001, the ALJ’s order was mailed to the parties and counsel. Both the claimant and the respondents filed timely petitions to review. By letter dated October 9, 2001, the court reporter notified the parties the transcript was complete and each party had 20 days, or until October 29, 2001, to file its brief in support of its petition to review.
On October 24, 2001, the respondents requested an extension of time until November 9, 2001, to file their brief in support of the petition to review. The ALJ granted the motion for extension by order dated November 6, 2001. The respondents mailed their brief in support of petition to review on November 9, 2001, and the brief was stamped as received on November 13, 2001. The claimant then filed a brief in opposition which was stamped as received on November 27, 2001.
On December 4, 2001, the ALJ transmitted the file to us by way of a “green sheet.” The green sheet contains a handwritten notation that the claimant’s brief in support of his petition to review was due October 29, 2001, but was “not filed as of 11/30/01.” The green sheet further contains a handwritten notation stating the respondents’ answer brief was due November 18, 2001, but was not received as of November 30.
We received the file on December 6, 2001. Our staff sent a letter to the parties acknowledging receipt of the record, but noting the absence of any brief in support the claimant’s petition to review. Our letter states that if a “brief was filed timely with the Division, a copy should be submitted directly to the Panel within ten days of the date of this letter.”
On December 14, 2001, we received a letter from claimant’s counsel enclosing a copy of a brief in support of the claimant’s petition to review (erroneously captioned as a Petition for Review). The Division of Administrative Hearings subsequently transmitted a copy of the same brief with a date stamp indicating that it was received by the Division on November 6, 2001. On December 18, 2001, we also received from the Division of Administrative Hearings a copy of the claimant’s motion for extension of time to file an opening brief. This motion bears a date stamp indicating the brief was received by the Division of Administrative Hearings on October 26, 2001, within the original time for filing the claimant’s brief. The motion requests an extension of time to and including November 6, 2001, to file the claimant’s brief in support of the petition to review. However, the file does not contain any order indicating whether or not the claimant’s motion for an extension of time was granted. Neither does the file contain an answer brief filed by the respondents in reply to the claimant’s opening brief.
Under these circumstances, we cannot ascertain whether the claimant’s brief in support of his petition to review was timely filed and should be considered on appeal. Further, it appears the ALJ was unaware the claimant filed a timely request for extension of time, or that the brief itself was filed on November 6. Finally, it is not apparent whether the respondents filed an answer brief, or failed to file a brief in anticipation of receiving an order ruling upon the claimant’s request for an extension.
Under the circumstances, the matter must be remanded for the ALJ to consider the claimant’s request for an extension of time to file the brief in support of the claimant’s petition to review, and whether the respondents are entitled to file an answer brief in response. Based on these determinations, the ALJ shall decide whether to enter a supplemental order in accordance with § 8-43-301(4), C.R.S. 2001.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein. Once the briefing schedule is complete and the ALJ has determined whether or not to enter a supplemental order, the matter may be retransmitted for our review.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
Copies of this decision were mailed January 28, 2002 to the following parties:
Joseph R. Spirek, 6056 Jellison St., Arvada, CO 80004
Warneke Paper Box Company, 4500 Joliet St., Denver, CO 80239-2919
Mid-Century Insurance Company, Tamarac II, 7535 E. Hampden Ave., #200, Denver, CO 80231
David W. Doyle, Esq., 4350 Wadsworth Blvd., #260, Wheat Ridge, CO 80033 (For Claimant)
Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Pendroy