Opinion
W.C. No. 4-376-793
June 9, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gallegos (ALJ) which ordered them to pay permanent partial disability benefits based on the impairment rating by the Division-sponsored independent medical examination (IME) physician. We dismiss the respondents' petition to review with prejudice.
On November 2, 1999, the ALJ entered specific findings of fact and conclusions of law ordering the respondents to pay permanent partial disability benefits based on the Division IME physician's impairment rating. The order contains a certificate of mailing to the parties dated November 13, 1999. On December 10, 1999, the respondents filed a petition to review with the Division of Administrative Hearings.
On December 14, 1999, the claimant filed a Motion to Strike Petition to Review arguing that the petition to review was not filed within twenty days of the date of the certificate of mailing of the ALJ's order as required by § 8-43-301(2), C.R.S. 1999. The respondents filed a Response to Motion to Strike Petition to Review stating that the petition to review was not timely filed because of an "inadvertent clerical error in calendering Respondents' response time." Citing our order in Cordova v. Bacon and Schramm, Inc., W.C. No. 3-719-341 (March 18, 1998), the respondents argued that the "circumstances surrounding this claim are at worst, excusable neglect," and these circumstances should not preclude the respondents from pursuing the appeal. On December 29, 1999, the ALJ entered an order denying the claimant's Motion to Strike Petition to Review. Thereafter, the parties submitted briefs and the matter was transmitted to us for review.
Section 8-43-301(2) provides that a petition to review an order of the ALJ "shall be filed within twenty days from the date of the certificate of mailing of the order, and, unless so filed, such order shall be final." This requirement is jurisdictional, and must be strictly enforced. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). Moreover, jurisdiction may not be conferred by waiver, consent, or estoppel. Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984).
The respondents have not denied that the petition to review was filed beyond the statutory time limit. Thus, the appeal must be dismissed unless the respondents' allegations of "excusable neglect" provide a legal basis for avoiding the jurisdictional requirements of the statute. Section 8-43-301(2) contains no provision permitting the late filing of a petition to review based on "excusable neglect" or for good cause shown, and we may not read such provisions into the statute. Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995). Thus, there is no statutory basis for accepting the respondents' untimely petition to review, even if the factual allegations concerning excusable neglect are true. Cf. Cramer v. Industrial Claim Appeals Office, 885 P.2d 318 (Colo.App. 1994); Picken v. Industrial Claim Appeals Office, 874 P.2d 485 (Colo.App. 1994).
Our order in Cordova v. Bacon and Schramm, Inc., supra, is not authority to the contrary. In that case, the ALJ entered an order dismissing the claim unless the claimant showed good cause, within 30 days, for his failure to appear for a hearing. The claimant did not file a timely response to the ALJ's dismissal order. However, the ALJ subsequently vacated the dismissal order based on a finding that claimant's counsel was unaware of the hearing date and the dismissal order because of "inadvertent clerical error." The respondents then filed a petition to review the ALJ's order vacating the order of dismissal. Our order, dated March 18, 1998, merely determined that the ALJ's order vacating the dismissal was not final and appealable. We rendered no opinion concerning the merits of the appeal. Indeed, our order dismissed the respondents' appeal without prejudice. Thus, in this case, the respondents' Response to Motion to Strike Petition to Review is incorrect in stating that the Cordova decision "affirmed the ALJ's decision to vacate the dismissal order due to inadvertent clerical error which constituted excusable neglect." To the contrary, the Cordova decision was purely procedural and rendered no opinion concerning whether excusable neglect affords a basis for circumventing jurisdictional filing requirements.
It follows that the respondents' petition to review the ALJ's order dated November 2, 1999, must be dismissed with prejudice. Similarly, the ALJ's order dated December 29, 1999, denying the claimant's Motion to Strike Petition to Review, must be reversed. Finally, it is unnecessary to remand the matter for a hearing because the respondents have not alleged the existence of any facts which would provide a legal basis for avoiding the jurisdictional deadline established by § 8-43-301(2).
IT IS THEREFORE ORDERED that the respondents' petition to review the ALJ's order dated November 2, 1999, is dismissed with prejudice.
IT IS FURTHER ORDERED that the ALJ's order dated December 29, 1999, is reversed, and the claimant's Motion to Strike Petition to Review is granted.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 9, 2000 to the following parties:
Elizabeth Ryckman, 8620 W. Alameda Ave., Denver, CO 80226
American Medical Response, Inc., 2821 S. Parker Rd., 3rd Floor, Aurora, CO 80014
Reliance National Insurance Company, Harlequin Plaza South, 7600 E. Orchard Rd., #310-S, Englewood, CO 80111
Alexander Howard, III, Adjuster, Crawford Company, 12301 Wilshire Blvd., #302, Los Angeles, CA 90025
Kerry L. Sullivan, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Kent L. Yarbrough, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Pendroy