Opinion
W.C. No. 3-842-707
July 21, 1995
ORDER OF REMAND
This matter has been transmitted to us for review of an order of the Director of the Division of Workers' Compensation (Director) dismissing the claim for failure to prosecute. We remand for further proceedings.
The Director's order, dated March 6, 1995, was entered pursuant to our Order of Remand dated August 5, 1994. In the March 6 order, the Director accepted as true all of the claimant's factual representations concerning the reasons for her failure to prosecute the claim. However, the Director concluded that claimant's factual representations did not rise to the level of good cause for failure to prosecute the claim. Consequently, the Director granted the respondents' "Motion to Close" the claim.
On March 16, 1995, the claimant filed a Motion to Reconsider the Director's order. The motion alleged that counsel for respondents concealed pertinent medical information from the Director, and that the claimant was entitled to an evidentiary hearing concerning the alleged failure to prosecute.
On March 17, 1995, the claimant filed a Petition to Review the Director's order and, on April 12, 1995, a briefing schedule was established. The briefing schedule allowed the claimant twenty days to file a brief in support of the petition to review, and allowed the respondents forty days to file a brief in the event the claimant did not file a timely brief.
The file does not reflect any further action until, on May 31, 1995, the claimant mailed a brief in support of her petition to review. Then, on June 9, 1995, the matter was "green sheeted" to us by a person identified as an "Admin. Officer." We received the record on June 9, and notified the parties of this fact by letter of June 21, 1995.
Subsequently, on July 10, 1995, the respondents filed a "Motion for Extension of Time, for Remand of the Record, or for Instructions." This motion alleges that the Director never saw the claimant's March 16 Motion for Reconsideration, and that an ALJ has taken the position that "the Director could request the file back from ICAO." The motion states that, if the matter is returned to the Director for consideration of the Motion for Reconsideration, the respondents may not need to file a brief. However, in the event the matter is not returned, the respondents request ten days to file a brief in opposition to the claimant's petition to review.
We have considered the record, and conclude that the matter must be remanded to the Director for action under §§ 8-43-301(4) and (5), C.R.S. (1994 Cum. Supp.). In reaching this conclusion, we hold that the "Admin. Officer" lacked jurisdiction to transmit the matter to us, and by doing so denied the Director the opportunity to exercise her statutory discretion to issue a supplemental order, hold an additional hearing or transmit the matter to us.
Under § 8-43-301(4) and the briefing schedule created by the April 12, 1995 letter, the claimant had twenty days, or until May 2, 1995, to file an opening brief in support of her petition to review. Because the claimant did not file a brief within this time period, nor did she submit a timely motion for extension of time, the respondents had until May 22, 1995 to file a brief in opposition to the petition to review. However, the respondents did not file a brief within the time limit, nor did they file a timely motion for an extension.
Because the time for filing briefs elapsed, § 8-43-301(4) allowed the Director thirty days from May 22, or until June 21, 1995, "to enter a supplemental order or transmit the file to the Industrial Claim Appeals Office for review." Further, under § 8-43-301(5), the Director also had discretion to amend the March 6 order, or set the matter for further hearing. The Director's failure to take any of these actions would ordinarily terminate the Director's jurisdiction over the claim, and vest us with jurisdiction to review the Director's order. Hillebrand Construction Co. v. Worf, 780 P.2d 24 (Colo.App. 1989).
However, before the thirty day period elapsed, the matter was transmitted to us by an "Admin. Officer." We hold that this transmission was ineffective for purposes of §§ 8-43-301(4) and (5) because it deprived the Director of her statutory power to review the petition to review and exercise her independent judgment concerning whether or not to issue a supplemental order or conduct additional proceedings.
Initially, we note that the power to issue supplemental orders, conduct additional proceedings, or transmit a file to the Industrial Claim Appeals Office is a power explicitly placed with the "Director or administrative law judge." Sections 8-43-301(4) and (5) these statutes do not authorize any other person to transmit a file to the Industrial Claim Appeals Office, or take any other of the permitted actions. Further, because the statutes vest authority with the Director or administrative law judge, transmission of a file by any other party is jurisdictionally defective. See Welch v. Industrial Commission, 722 P.2d 439 (Colo.App. 1986) (proof that "hearing officer" was not legally employed at the time he entered an order would raise jurisdictional question concerning the validity of the order.)
We have considered the possibility that the "Admin. Officer" was a "claims manager" purporting to act under authority created by § 8-43-218(1), C.R.S. (1994 cum. Supp.). However, none of the powers listed in § 8-43-218(1) permits claims managers to consider petitions to review and make the determinations required by § 8-43-301(4) and (5). Moreover, § 8-43-219, C.R.S. (1994 Cum. Supp.), provides that nothing in § 8-43-218 "shall be construed to limit any party's rights or privileges as provided by law." Under § 8-43-301(4), a party has the right to have the Director make an independent determination concerning whether or not to issue a supplemental order or hold additional hearings with respect to an order previously issued by the Director. Cf. McClelland v. Hewlett Packard, W.C. No. 3-997-475, May 18, 1993 (questioning whether claims managers have authority to resolve disputed evidentiary issues involving the "closure" of claims).
It follows that this matter is not properly before us. Because the "Admin. Officer" purported to transmit the file to us prior to the expiration of the thirty day period established in § 8-43-301(4), the Director has not been afforded the opportunity to exercise her various options regarding the claimant's petition to review the March 6 order. The Director's statutory authority to act would have elapsed on June 21, 1995. Since the matter was transmitted to us on June 9, 1995, we believe the Director should be afforded the remaining statutory time, or an additional twelve days, to take action in accordance with § 8-43-301(4) and (5).
In view of this disposition, it is unnecessary for us to rule upon the "Motion for Extension of Time, for Remand of the Record, or for Instructions."
IT IS THEREFORE ORDERED that the matter is remanded to the Director of the Division of Workers' Compensation for action in accordance with §§ 8-43-301(4) and (5). If the Director desires to take any action, she must do so within twelve days of the date of this order or the matter must transmitted to us for review of the Director's March 6, 1995 order.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
Copies of this decision were mailed July 21, 1995 to the following parties:
Clara L. Wooden, 4210 Resurrection Dr., Anchorage, AK 99504
Conway's Red Top, Inc., P.O. Box 38463, Colorado Springs, CO 80903
Division of Workers' Compensation, Attn: Barbara Kozelka, Director — Interagency Mail
Colorado Compensation Insurance Authority, Attn: P. Tochtrop, Esq. (Interagency Mail)
Steven U. Mullens, Esq., 90 S. Cascade, Ste. 300, P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
Douglas P. Ruegsegger, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
John D. Baird, Esq., First Assistant Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203
By: ____________________