Opinion
W.C. No. 4-541-853.
April 8, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated November 13, 2008, denying the claimant's request to reconsider his earlier decision. On October 9, 2008, the ALJ denied the claimant's request to accept as timely her petition to review the ALJ's previous order on the merits dated September 4, 2008. We conclude that we lack jurisdiction to review this matter under the circumstances and, therefore, dismiss the appeal.
This matter concerns the issue of whether the claimant's petition to review a decision of the ALJ may be accepted as timely. Upon the claimant's request, the ALJ issued his full Findings of Fact, Conclusions of Law, and Order dated September 4, 2008. On September 5, 2008, the full order was sent to the counsel of record by email, as opposed to the previous summary order, which appears to have been served upon the attorneys by U.S. mail. In a petition to review dated October 2, 2008, the claimant requested that the ALJ accept her petition as timely filed. In support of her request, the claimant's counsel asserted that email correspondence from the ALJ's staff was misleading and that he did not realize that the order had been sent to him as an email attachment until the expiration of the time to file a petition to review the order. The respondents opposed the claimant's request and on October 9, 2008, the ALJ denied the claimant's motion for relief and determined that the claimant's petition to review was
untimely. The claimant then filed a motion to reconsider, which the ALJ summarily denied on November 13, 2008.
The claimant's attorney argues on appeal that it was not sufficiently clear from the email correspondence he initially received from the ALJ's staff member that the order was, in fact, attached, thereby providing him with insufficient notice of the ALJ's order. The parties apparently agreed to receive the ALJ's order by email and the claimant does not contend otherwise. See § 8-43-215(1), C.R.S. 2008 (authorizing service of orders by electronic mail); Office of Administrative Courts Procedural Rules for Workers' Compensation Hearings, Rule 25 (providing for service of order by electronic mail by agreement of parties). However, the claimant's attorney acknowledges that as he subsequently recognized the order was, in fact, attached to the email used to serve the order on the counsel for the parties. Thus, this is not a case in which a party did not actually receive service of an order. See Industrial Commission v. Martinez, 102 Colo. 31, 34, 77 P.2d 646, 648 (1938) (time to petition for review does not run where no notice or insufficient notice given).
Copies of the email notice at issue are attached to the claimant's relevant motions. The email identifies the sender as having an official state of Colorado email address and identifies the subject as "E-Order." The email also refers to an attachment identified as "FFCL WC Caption w-Cert.DOC" and states the following in the body of the email:
Reference: Watson-Cox, Alice/WC 4-541-853 WC 4-541-853 Watson-Cox FFCL ALJ Harr Let me know when you receive this
It thus appears from the email that an order is clearly identified as the subject of the correspondence. Less clear is the nature of the attachment. Presumably, "FFCL" refers to Findings of Fact, Conclusions of Law, and Order. In any event, we cannot say as a matter of law that the service of the order by email is misleading or otherwise fatally defective for the purpose of serving the ALJ's order upon the parties. Cf. Davis v. Industrial Claim Appeals Office, 982 P.2d 330, 332-33 (Colo.App. 1999) (order found ambiguous due to technical and confusing nature of advisements); Marquez v. Industrial Claim Appeals Office, 868 P.2d 1175, 1177 (Colo.App. 1994) (ambiguous advisements in unemployment orders constituted administrative error).
We find no basis for relief in this case. The claimant's counsel acknowledges that the email from the Office of Administrative Courts actually contained the order as an attachment, as he subsequently discovered. However, it appears from the email sent from the claimant's counsel in response to the Office of Administrative Courts that he was
genuinely confused about the whereabouts of the ALJ's order. Affidavit of Jan A. Larsen in Support of Motion for Reconsideration of Order Dismissing Petition to Review Pursuant to OAC Rule 26 F, Exhibit B. Even so, relief for the late appeal is not available on the basis of excusable neglect and the claimant does not argue otherwise. See Speier v. Industrial Claim Appeals Office, 181 P.3d 1173, 1175-76 (Colo.App. 2008) (excusable neglect no exception to deadline for petitions for review).
IT IS THEREFORE ORDERED that the claimant's petition to review the ALJ's order dated November 13, 2008 is dismissed with prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
ALICE WATSON, Attn: F/K/A ALICE WATSON-COX, CHEYENNE, WY, (Claimant).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, 80230 (Insurer).
LAW OFFICES OF JAN A. LARSEN, PC, Attn: JAN A. LARSEN, ESQ., FORT COLLINS, CO, (For Claimant).
RUEGSEGGER SIMON SMITH STERN, LLC, Attn: KATHERINE H.R. MACKEY, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS KATHY BERNARD, DENVER, CO, (Other Party).