W.C. No. 4-492-570Industrial Claim Appeals Office.
January 16, 2003
ORDER OF REMAND
The respondent-insurer (American) seeks review of an order of Administrative Law Judge Friend (ALJ) which determined it is liable to pay benefits and assessed a penalty for its failure timely to admit or deny liability. We remand the matter to determine whether the claimant has shown good cause to file an answer brief out of time.
The ALJ entered the order on June 6, 2002, and American filed a petition to review. American filed a brief in support of the petition on September 16, 2002, making the claimant’s answer brief due on Monday October 7, 2002. Section 8-43-301(4), C.R.S. 2002. However, an answer brief was not timely filed.
On October 16, 2002, counsel for the claimant filed a motion for extension of time to file the answer brief citing a “precipitous change of workload” as the reason for the delay. Despite the fact the request for extension was not filed within the statutory time limit, an extension of time was granted to and including November 5, 2002.
The claimant failed to file an answer brief by November 5, 2002, and the ALJ transmitted the matter to us for review. The file was received in this office on November 25, 2002.
On December 4, 2002, claimant’s counsel filed with the Division of Administrative Hearings (DOAH) a second motion for extension of time to file the answer brief. This motion represents that claimant’s counsel became ill because of “pathogenic microorganisms” in his home, and that counsel suffered a “striking loss of stamina and productivity.” Counsel implies the illness has resulted in “delinquencies in multiple cases.” American filed an objection to the request for extension citing the prior extension and the extent of the delay. The DOAH did not rule on the motion, apparently because the matter was already transmitted for review.
Ordinarily, requests for an extension of time to submit a brief must be filed within the time limit established by law or the request must be denied. Rule of Procedure VII (D)(4), 7 Code Colo. Reg. 1101-3 at 20. However, it has been held that illness which precludes participation in a scheduled hearing by a party or counsel establishes good cause for a continuance. See Pollard v. Walsh, 194 Colo. 566, 575 P.2d 411 (1978) Harris v. Midwest Research Institute, W.C. No. 4-219-439 (September 24, 1999).
Here, the second motion for extension of time filed by claimant’s counsel implies that a brief was not filed and a request for extension was not made by November 5, 2002, because counsel was physically unable to complete such actions, and physically unable to arrange for such actions. If such physical incapacity were established as a matter of fact, then good cause would exist for granting the extension even though it was filed out of time. Of course, we lack statutory authority to conduct fact-finding proceedings and to resolve conflicts in the evidence. Section 8-43-301(8), C.R.S. 2002. Under these circumstances, the matter must be remanded to the DOAH to address the claimant’s motion for extension of time and to determine whether the claimant has shown good cause, on account of counsel’s alleged illness, to file a brief out of time. We should not be understood as expressing any views on the merits of this issue. Further, an ALJ is authorized to conduct such proceedings as are deemed necessary to determine the underlying factual issues.
IT IS THEREFORE ORDERED that the matter is remanded to the DOAH for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
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David Cain
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Kathy E. Dean
Copies of this decision were mailed _______January 16, 2003 to the following parties:
Jeremy Stephens, 1307 Grays Peak Dr., Longmont, CO 80501
Air Package Express Services, Inc., 1501 S. Arthur Ave., Louisville, CO 80027
Virginia Surety, c/o Naomi Thiessen, Crawford and Company, P.O. Box 3804, Omaha, N.E. 68103
Chandra Singh, American Employers Group, P.O. Box 281900, San Francisco, CA 94128
Subsequent Injury Fund, Tower 2, #500, Division of Workers’ Compensation — Interagency Mail
Independent Medical Exam, Tower 2, #640, Division of Workers’ Compensation — Interagency Mail
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Kathleen Mowry Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: _______A. Hurtado_______________________