Speier v. Industrial Claim Appeals Office

Judge RUSSEL

dissenting.

I agree with the majority that claimant failed to file a timely petition for review. In Industrial Claim Appeals Office v. Zarlingo, 57 P.3d 736, 738 (Colo.2002), the supreme court held that C.A.R. 26(c) "directly conflicts" with the twenty-day deadline for filing a notice of appeal under section 8-48-301(10), C.R.S.2007. And though it is a close question, I agree that Zarlingo's rationale applies to deadlines under section 8-48-801(2), C.R.S8.2007, notwithstanding the intervening adoption of the administrative rules.

But I do not agree that the ALJ lacked authority to consider claimant's motion for reconsideration.

Section 8-48-207(1)(), C.R.S.2007, states that an ALJ may, upon written motion and for good cause shown, "grant reasonable extensions of time for the taking of any action contained in this article." By its plain terms, this statute allows an ALJ to extend the time for filing a petition for review (an action contained in article 48).

Contrary to the conclusions of the majority here and the division in Cramer v. Industrial Claim Appeals Office, 885 P.2d 318, 820 (Colo.App.1994), I am not persuaded that an ALJ's authority to grant extensions of time under section 8-48-207(1)(i) must be limited to nonjurisdictional actions. The legislature may authorize discretionary extensions of any statutory deadline, and it may do so in a variety of ways. It may place qualifying language in the statute that creates the deadline itgelf. See, eg., § 8-74-106(1)(b), C.R.S. 2007. Or it may, as here, enact a separate provision that grants discretionary power over a broad range of actions.

Instead of affirming the panel's decision, I would remand this case to the ALJ for a determination of whether claimant estab*1177lished good cause for the filing of a late petition for review.

Therefore, I respectfully dissent.