Buschmann v. Gallegos Masonry, Inc., 90CA0174

• Decision Date: 17 January 1991
• Docket Number: No. 90CA0174,90CA0174
• Citation: 805 P.2d 1193
• Parties: Mark BUSCHMANN, Petitioner, v. GALLEGOS MASONRY, INC., Colorado Compensation Insurance Authority, and the Industrial Claim Appeals Office of the State of Colorado, Respondents. . III
• Court: Colorado Court of Appeals

Page 1193

805 P.2d 1193

Mark BUSCHMANN, Petitioner, v. GALLEGOS MASONRY, INC., Colorado Compensation Insurance

Authority, and the Industrial Claim Appeals Office

of the State of Colorado, Respondents.

No. 90CA0174.

Colorado Court of Appeals,

Div. III.

Jan. 17, 1991.

Shakeshaft & Chernushin, P.C., Kenneth J. Shakeshaft, Colorado Springs, for petitioner.

John Berry, Denver, for respondents Gallegos Masonry, Inc. and Colorado Compensation Ins. Authority.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Carol A. Finley, Asst. Atty. Gen., Denver, for respondent Industrial Claim Appeals Office.

Opinion by Judge RULAND.

In seeking reconsideration of an order of the Administrative Law Judge (ALJ) in a workers' compensation proceeding, the claimant, Mark Buschmann, mailed his petition for review to the Denver office of the Division of Labor. The sole issue is whether the timely mailing of claimant's petition to review is sufficient to confer jurisdiction upon the ALJ to act, even though it was mailed to the wrong office. We agree with the Panel's conclusion that the mailing defect divested the ALJ of jurisdiction, and thus, we affirm its order.

The ALJ temporarily suspended the claimant's benefits in an order mailed to the parties on June 12, 1989, from the Colorado Springs office of the Division of Labor. The order advised claimant of his right to review and stated explicitly that any petition to review would have to be mailed, or delivered, to the Colorado Springs office within twenty days after the mailing date of the order.

Claimant's petition to review, accompanied by a letter dated June 26, was sent, via certified mail, to the Denver office. The petition was received on June 27. However, the petition was not sent by the Denver office to the Colorado Springs office until July 7, four days beyond the twenty-day period established under § 8-53-111(1.1), C.R.S. (1986 Repl.Vol. 3B) (now codified as § 8-43-301(2), C.R.S. (1990 Cum. Supp.)). The ALJ dismissed the petition, finding that it was not timely filed. The Panel affirmed.

Claimant argues that the jurisdictional requisites of the statute were satisfied by the timely mailing of his petition to review, notwithstanding that the document was mailed to the wrong office. We do not agree.

The timely filing of a petition to review is a jurisdictional requirement, Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App.1984), and thus, the statutory provisions governing administrative and appellate review are strictly enforced. See In re Claim of Newman v. McKinley Oil Field Service, 696 P.2d 238 (Colo.1984); Western Empire Constructors, Inc. v. Industrial Claim Appeals Office, 769 P.2d 1089 (Colo.App.1989). The timely filing requirement extends to and requires that a petition be filed with the proper administrative or judicial forum. See Trujillo v. Industrial Commission, 31 Colo.App. 297, 501 P.2d 1344 (1972).

Under the statute as it existed before 1988, a petition to review could be filed with either the Director of the Division of Labor or with the hearing officer. However, in that year, the General Assembly amended the statute to include language which now provides, in pertinent part:

"Any party dissatisfied with an order ... may file a petition to review with the director, if the order was entered by the director, or with the administrative law judge at the place indicated in the order, if the order was entered by the administrative law judge, and serve the same by mail on all the parties. Such petition 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. The petition to review may be filed by mail and shall be deemed filed upon the date of mailing as determined by the certificate of mailing." Section 8-43-301(2), C.R.S. (1990 Cum.Supp.) (emphasis added)

The amendment of a statute generally evidences an intent by the General Assembly to change the law. See People in re Interest of D.B., 767 P.2d 801 (Colo.App.1988).

In recent years the General Assembly has adopted...