Ortiz v. Industrial Com'n of State of Colo., 86CA0618

• Decision Date: 13 November 1986
• Docket Number: No. 86CA0618,86CA0618
• Citation: 734 P.2d 642
• Parties: Jorge ORTIZ, Petitioner, v. The INDUSTRIAL COMMISSION OF the STATE OF COLORADO, MV Enterprises and the Insurance Company of North America, Respondents. . III
• Court: Colorado Court of Appeals

Page 642

734 P.2d 642

Jorge ORTIZ, Petitioner, v. The INDUSTRIAL COMMISSION OF the STATE OF COLORADO, MV Enterprises and the Insurance Company of North America, Respondents.

No. 86CA0618.

Colorado Court of Appeals Div. III.

Nov. 13, 1986.

Steven U. Mullens, P.C., Steven U. Mullens, James A. May, Colorado Springs, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Kathryn J. Aragon, Asst. Atty. Gen., Denver, for respondent Industrial Commission.

Glasman, Jaynes, Carpenter & McBride, Susan D. Steninger Knisley, Denver, for respondents MV Enterprises and The Insurance Company of North America.

METZGER, Judge.

Jorge Ortiz (claimant) seeks review of a final order of the Industrial Commission which suspended his temporary total disability benefits and determined he was not eligible for vocational rehabilitation benefits. We affirm.

Claimant injured his back in the course of his employment as a concrete finisher and received temporary total disability benefits. Later, claimant's treating physician released him to return to work without restrictions. Claimant disagreed with the physician's assessment of his condition, contending that he was not able to return to work because he continued to suffer back pain. Thereafter, claimant consulted other physicians for additional opinions. However, based on the treating physician's opinion, respondents MV Enterprises and the Insurance Company of North America moved to suspend claimant's temporary total disability benefits.

The hearing officer granted respondents' motion to suspend claimant's benefits. He determined that the treating physician's opinion was credible and that there was a lack of objective medical evidence to support the other physicians' findings. The hearing officer also found that claimant was ineligible for vocational rehabilitation because he is not a "qualified worker." He reasoned that, because claimant is an illegal alien without work papers, he cannot legally be employed in the United States and could, therefore, not meet the requirement that a worker "reasonably be expected to obtain suitable gainful employment." See Industrial Commission Rules Part V, 7 Code Colo.Reg. 1101-3. The Commission adopted and affirmed the hearing officer's decision, and this petition for review followed.

I.

We first address respondents' contention that neither the Industrial Commission nor this court has jurisdiction to consider the issues raised. Respondents assert that, because claimant failed to file a brief in support of his petition for review by the hearing officer within the twenty day time limit set forth in § 8-53-111(3), C.R.S. (1986 Repl.Vol. 3B), jurisdiction has been lost. We disagree.

In Saxton v. Industrial Commission, 41 Colo.App. 309, 584 P.2d 638 (1978), we determined that the failure to file a brief in support of a petition for review of a hearing officer's order is not a jurisdictional defect. Nevertheless, respondents assert that, because § 8-53-111(3), C.R.S. (1986 Repl.Vol. 3B), which discusses time requirements for the filing of briefs, was enacted after Saxton, that decision is no longer applicable. We disagree.

We hold that, under the present statutory scheme, the failure to file a brief or the untimely filing of a brief under § 8-53-111(3) is not a jurisdictional defect. We are persuaded by the language in § 8-53-111(1), C.R.S. (1986 Repl.Vol. 3B), which states, in part, that if no petition for review is filed within the specified time limit, the order of the hearing officer shall be final. There is no similar language with respect to the timely filing of a brief. See also Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282 (1953).

We also find support for our determination in § 8-53-111(3) and § 8-53-111(6), C.R.S. (1986 Repl.Vol. 3B). The former provides, in pertinent part, that, upon the filing of a petition for review, after the briefs are filed or the time for filing has run, the director or hearing officer shall have 30 days to enter a supplemental order or transmit the file to the Industrial Commission for its decision. Similarly, § 8-53-111(6), provides that, when a petition for review by the Industrial Commission is filed, "the division shall, when all briefs are submitted to it, or within fifteen days of the date briefs were due, certify and transmit the record to the Commission along with the petitions and...