IN RE STROH, W.C. No. 4-264-881 (1/30/98)


IN THE MATTER OF THE CLAIM OF MARY STROH, Claimant, v. JOHN Q. HAMMONS MANAGEMENT COMPANY, Employer, and AMERICAN MOTORISTS INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-264-881Industrial Claim Appeals Office.
January 30, 1998

ORDER OF REMAND

The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) dated September 16, 1997, which dismissed and denied their Petition to Review the ALJ’s order dated August 19, 1997. We set aside the order and remand the matter to the ALJ for further proceedings.

Section 8-43-301(2), C.R.S. 1997, provides that an ALJ’s order is final and not subject to review in the absence of a timely filed petition to review. The petition may be filed by personal delivery or mail. Where the petition is filed by mail, it:

“[S]hall 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).

On August 19 1997, the ALJ issued an order which awarded temporary total disability benefits. The order contained a specific notice that the order was final unless a petition to review was filed at the “Division of Administrative Hearings, P.O. Box 8287, Fort Collins, Colorado.”

It is undisputed that the August 19 order was final unless the respondents filed a petition to review by September 8, 1997. On August 26, 1997, the respondents mailed a Petition to Review to the Division of Administrative Hearings (Division) in Denver. The record reflects that the Division received the Petition on August 27, 1997.

However, the ALJ found that the certificate of mailing on the respondents’ Petition to Review did not indicate that it was mailed to him. Furthermore, the ALJ found that he did not receive the Petition by September 8, 1997. Consequently, in an order dated September 16, 1997, the ALJ determined that the respondents did not comply with the statutory requirements for the filing of a petition to review, and therefore, the ALJ dismissed the Petition to Review.

The respondents timely appealed the order of September 8, 1997, and attached a copy of the August 26, 1997 Petition to Review. The respondents also filed affidavits from Julie Perry, a legal assistant working for the Division and Nancy Mcilvenna, a legal assistant working for the respondents’ attorney. The respondents argued that Ms. Mcilvenna’s affidavit proves that the ALJ ultimately received the Petition to Review, even though there is no evidence of the date it was received. Based upon Ms. Perry’s affidavit, the respondents asserted that, under the Division’s normal procedure, the Division would have immediately forwarded the Petition to Review to the ALJ. Because there is no evidence that the Division did not follow their normal procedure, the respondents argued that their Petition to Review was delivered to the ALJ by September 2. Under these circumstances, the respondents asserted that the Petition to Review was timely filed.

The ALJ held no further proceedings. Instead, the ALJ transmitted the matter to us for review of the September 16 order.

On review, the respondents concede that they did not initially send a copy of their Petition to Review to the ALJ as required by § 8-43-301(2). However, citing our decision in Myrant v. City and County of Denver, W.C. No. 4-146-289 (January 22, 1996), they contend that the pertinent issue is whether the Petition to Review was delivered to the ALJ by September 8, 1997. We agree.

A timely filed petition to review is a jurisdictional prerequisite to appellate review. See Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984); Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984). Moreover, it has been held that failure to mail a petition to review to the address designated in an order, as provided by § 8-43-301(2), constitutes a jurisdictional defect. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).

However, § 8-43-301(2) does not prescribe any particular method of “filing” “a petition to review” at the place indicated in the order. Neither does the statute suggest that an incorrect filing cannot be remedied by proper delivery within the twenty day time limit. To the contrary, the statute requires only that a petition to review be delivered to the correct location within the time limit. Accordingly, in Myrant v. City and County of Denver, W.C. No. 4-146-289 (January 22, 1996), we concluded that where a petition to review was not mailed to the correct address, the critical issue was whether the initial misdelivery “resulted” in failure to deliver the petition to review to the correct location within the statutory twenty days period. We adhere to our conclusions in Myrant.

Furthermore, due process of law requires that, when an administrative determination turns on questions of fact, the “parties be apprised of all the evidence to be submitted and considered, and that they be afforded a reasonable opportunity to which to confront adverse witnesses and present evidence and argument in support of their position.” Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Thus, i Pueblo School District No. 60 v. Clementi, 776 P.2d 1152
(Colo.App. 1989), the court set aside an ALJ’s order dismissing a petition to review which was entered without an evidentiary hearing to resolve the parties’ factual dispute concerning whether the respondents timely filed their petition to review.

Here, there is a factual dispute concerning whether the respondents’ initial mailing error resulted in a failure to deliver their Petition to Review to the ALJ by September 8, 1997. The ALJ found that the Petition to Review was not “received” by September 8, 1997. However, the ALJ made this factual determination without conducting an evidentiary hearing, and prior to receiving the affidavits filed by the respondents.

Furthermore, the affidavits of Ms. Perry and Ms. Mcilvenna constitute some evidence, which if credited, might support the respondents’ contention that the Petition was delivered to the ALJ by September 8, 1997. Under these circumstances, we must set aside the ALJ’s order and remand the matter for further proceedings.

On remand, the ALJ shall afford the parties an opportunity to present evidence concerning whether the Petition to Review was delivered to him by September 8, 1997. Based upon that evidence, the ALJ shall make a specific factual determination as to whether the petition to review was timely received at the correct location within the statutory time limit.

IT IS THEREFORE ORDERED that the ALJ’s order dated September 16, 1997 is set aside and the matter is remanded to the ALJ for further proceedings and the entry of a new order consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean

Copies of this decision were mailed January 30, 1998 to the following parties:

Mary Stroh, 438 Redbud Ln., WP AFB, OH 45433

John Q. Hammons Hotel, Inc. d/b/a Holiday Inn, 425 W. Prospect Rd., Ft. Collins, CO 80526-2064

American Motorists Ins. Co., Attn: Roxanne J. Barnes, P.O. Box 53437, Denver, CO 80217-5347

Craig Stirn, Esq., 2629 Redwing Rd., #280, Ft. Collins, CO 80526 (For the Claimant)

Karen R. Wells, Esq., Anne Smith Myers, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For the Respondents)

BY: _________________________________