W.C. No. 4-367-880Industrial Claim Appeals Office.
December 21, 1999
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied and dismissed the claim for benefits. We remand the matter to determine if the claimant filed a timely petition to review, and for completion of the record.
On May 3, 1999, the ALJ entered specific findings of fact and conclusions of law which denied and dismissed the claim for benefits. However, the “Certificate of Service” attached to the order does not indicate the date the order was mailed to the parties. Neither does the record contain a petition to review filed by the claimant. The first document filed by the claimant after the ALJ’s order is Claimant’s Brief in Support of Petition to Review dated August 28, 1999.
Section 8-43-301(2), C.R.S. 1999, provides that the petition to review must be filed within twenty days “from the date of the certificate of mailing of the order.” Failure to file a timely petition to review is jurisdictional and precludes appellate review. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193
(Colo.App. 1991). Although the parties have not raised an issue concerning the timeliness of the petition to review, the matter is jurisdictional and may not be waived. Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984).
Under these circumstances, the matter must be remanded to the ALJ to determine the date on which the order was mailed to the parties. Further, the ALJ must determine whether the claimant filed a timely petition to review. Gonzales v. Fair Acres Manor, Inc., W.C. No, 4-346-033 (January 21, 1999); Toth v. Pueblo School District No. 70, W.C. No. 3-878-236 3-793-718 (January 27, 1994). If the ALJ determines a timely petition to review was filed, a copy of the petition should be included in the record. If necessary, a hearing may be held to make these determinations.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ to determine whether the claimant filed a timely petition to review, and for completion of the record. Once the ALJ makes the requisite determinations, and the record is complete, the matter may be retransmitted for our review.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed December 21, 1999 to the following parties:
Shawn R. Wills, 1616 Chestnut, #16, Canon City, CO 81212
Ready’s Ice Company, Inc., Attn: David Miller, 2nd Water St., P.O. Box 1022, Canon City, CO 81212
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Lawrence D. Saunders, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Thomas M. Stern, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy