Opinion
W.C. No. 4-239-935
April 19, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) dated August 24, 1995. The respondents contend that the ALJ erred insofar as she determined that Dr. Sova D.C., is authorized to treat the claimant's injury due to the Colorado Compensation Insurance Authority's (CCIA) failure to respond to the claimant's request for a change of provider within the time prescribed by § 8-43-404(5)(a), C.R.S. (1995 Cum. Supp.). We perceive no reversible error, and therefore affirm.
Insofar as pertinent, the record reveals that the claimant's attorney sent a letter dated January 31, 1995 to the CCIA requesting permission for the claimant to treat with Dr. Sova. The CCIA stipulated that it received the letter on February 6, 1995. On February 27, 1995 the CCIA mailed the claimant a General Admission of Liability which stated that "St. Mary Corwin Hosp. is the only authorized medical provider."
The ALJ found that even if the General Admission of Liability is construed as the CCIA's response to the claimant's request to treat with Dr. Sova, the response was untimely because it was not mailed within twenty days of the date the CCIA received the request. Therefore, the ALJ determined that the respondents waived any objection to the claimant's request to treat with Dr. Sova.
On appeal, the respondents contend that the twentieth day after February 6 was a Sunday. Under these circumstances, the respondents argue that the time period for responding to the claimant's request was extended to Monday, February 27, 1995. Therefore, the respondents argue that the CCIA's February 27 General Admission of Liability was timely objection to the claimant's request to treat with Dr. Sova.
For its part, the claimant argues, inter alia, that the CCIA was required to respond to the claimant's written request within twenty days of the date of the request and not twenty days from the date of the CCIA's receipt of the request. Therefore, the claimant argues that the CCIA's February 27 response was untimely. We agree with the claimant.
Section 8-43-404(5)(a), C.R.S. (1995 Cum. Supp.) provides in pertinent part:
" Upon written request to the insurance carrier or employer's authorized representative if self-insured, the employee may procure written permission to have a personal physician or chiropractor attend said employee. If such permission is neither granted nor refused within twenty days, the employer or insurance carrier shall be deemed to have waived any objection thereto. Objection shall be in writing and shall be deposited in the United States mail or hand delivered to the employee within said twenty days." (Emphasis added).
The pertinent issue is when the twenty day period begins to run. However, § 8-43-404(5) does not specify when the twenty day period begins to run. Compare Digital Equipment Corporation v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA1351, March 9, 1995), citing Lutheran Hospital Homes Society v. Industrial Commission, 710 P.2d 496 (Colo.App. 1985) [under plain language of § 8-43-301(2) the twenty day period to file petition to review begins to run on the date of the certificate of mailing of the ALJ's order].
In Lutheran Hospital Homes Society v. Industrial Commission, supra, the court was required to interpret former § 8-74-107(2), C.R.S. (1974 Cum. Supp.), which provided that an action to set aside a final order of the Industrial Commission on a claim for unemployment compensation may be commenced by
"filing in the court of Appeals within twenty days a notice of appeal." 1984 Colo. Sess. Laws, ch. 60 at 318. The court noted that the statute did not specify when the twenty days began to run. However, the court expressly rejected an argument that the twenty day period began on the date the appealing party received a copy of the order of the Industrial Commission. Rather, the court determined that one purpose of the requirement that the Industrial Commission provide the parties with copies of its decision, is to trigger the time for filing an appeal. Therefore, the court concluded that the twenty day period began from the date the Industrial Commission mailed its order to the parties. In so doing, the court expressly relied upon State Civil Service Commission v. Fleming, 183 Colo. 71, 514 P.2d 1135 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974), in which the Supreme Court stated that "where a statute is non-specific on a point, which nevertheless, is obvious on the basis of the clear statutory scheme involved, it is proper for the court to express it". Lutheran Hospital Homes Society v. Industrial Commission, 710 P.2d 497.
Section 8-43-404(5)(a) provides that where a claimant seeks permission from the insurer to treat with a physician or chiropractor of his own selection, the claimant must submit a "written request" to the insurer. The obvious purpose of this requirement is to ensure that the insurer has notice of the relief sought by the claimant, and to evoke the insurer's statutory duty to respond to the request within twenty days. Cf. Rendon v. United Airlines, 881 P.2d 482 (Colo. App. 1994) (petition for review was deemed filed on date contained in "certificate of mailing" on a cover letter, since objective was to provide timely notice to "proper recipient"). Therefore, we believe that the claimant's "written request" is the event which triggers the beginning of the twenty day period prescribed by § 8-43-404(5)(a).
Furthermore, the statute does not specify the manner in which the claimant must serve the "written request" on the insurer, and thus, we do not read the statute to preclude the claimant from rendering service by mail. C.R.C.P. Rule 5(c) states that where service is made by mail it is complete on the date of mailing. Similarly, the Rules of Procedure, Part VIII(F), Code Colo. Reg. 1101-3 at 24 (1995) provide that the date of "filing" a document in a workers' compensation case is the date of mailing as stated in the certificate of mailing when document is mailed. Accordingly, where the claimant's "written request" for a change of provider is delivered by mail, the insurer must respond within twenty days of the date of the correspondence. See Powderhorn v. Weaver, 835 P.2d 616 (Colo.App. 1992) (state rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Workers' Compensation Act).
Here, there is no dispute that the written request to treat with Dr. Sova was mailed on January 31, 1995. (Finding of Fact 13; Tr. p. 5.). Therefore, the CCIA had twenty days from January 31, 1995 to have their written response "deposited in the United States mail or hand delivered to the employee."
Where the statute does not specify the method for calculation of elapsed time, the computation is governed by § 2-4-108(1), C.R.S. (1980 Repl. Vol. 1B); Ralston Purina v. Lowry, 821 P.2d 910 (Colo.App. 1991). Section 2-4-108(1) provides that in computing a period of days, the first day is excluded and the last day is included. Subsection 2-4-108(2) provides that if the last day of the period is on a Saturday, Sunday or holiday, the period is extended to the next day which is not a Saturday, Sunday or holiday.
Because the claimant mailed his request on January 31, 1995, and the first day is excluded, the CCIA was required to respond by Monday, February 20, 1995. However, that day was a legal holiday. Therefore, the time period was extended to Tuesday, February 21, 1995.
Under these circumstances, the ALJ did not err in determining that the CCIA's February 27, 12995 General Admission of Liability did not constitute a timely objection to the claimant's request to treat with Dr. Sova. Consequently, the ALJ did not err in concluding that Dr. Sova is authorized to treat the claimant's injury. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
As a result of our disposition we do not consider the claimant's other arguments in support of the ALJ's determination that Dr. Sova is an authorized treating physician.
IT IS THEREFORE ORDERED that the ALJ's order dated August 24, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed April 19, 1996 to the following parties:
John R. Turner, 321 Veta, Pueblo, CO 81004
Gianetto Oil Co., Inc., 202 S. Main St., Pueblo, CO 81003
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
BY: _______________________