Opinion
W.C. No. 4-285-014
November 20, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ), insofar as the ALJ authorized a change in the treating physician on grounds that the respondents did not timely refuse the claimant's request for a change. We reverse.
The pertinent facts are undisputed. On November 3, 1997, counsel for the claimant mailed to the insurance adjuster a written request for a change of physician. On Monday, November 24, 1997, counsel for the respondents mailed a letter to claimant's counsel denying the request for a change of physician.
Under these circumstances, the ALJ concluded that the respondents failed to deny the claimant's written request for a change of physician within twenty days as required by § 8-43-404(5)(a), C.R.S. 1998. Citing Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996), the ALJ stated that he was unpersuaded by the respondents' argument that, because the twentieth day after November 3 fell on a Sunday, the respondents had until Monday, November 24 to mail the denial.
On review, the respondents contend the ALJ erred as a matter of law in his interpretation of § 8-43-404(5)(a). Citing C.R.C.P. 6(a), the respondents reiterate the argument that because the twentieth day fell on Sunday, November 23, 1997, they had until November 24 to mail the denial of the request for a change of physician. We agree with the respondents, although for slightly different reasons.
Section 8-43-404(5)(a) provides as follows:
"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."
The claimant asserts that the "plain meaning" of this statute is that the employer or insurance carrier must mail the denial within twenty days of the request for a change regardless of whether the twentieth day falls on a Saturday, Sunday, or legal holiday. However, such an interpretation would be directly contrary to express rules of statutory construction.
Section 2-4-108(2), C.R.S. 1998, provides that, when computing a period of days, "if the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day which is not a Saturday, Sunday, or legal holiday." This statutory provision applies to all statutes, including the Workers' Compensation Act (Act), so long as this specific statute does not provide an alternative method of computation. See Ralston Purina-Keystone v. Lowry, 821 P.2d 910 (Colo.App. 1991) (applying § 2-4-108(1) to the Act in determining whether or not the claimant missed more than three days of work).
Section 8-43-404(5)(a) contains no provisions specifying whether the twenty day period for mailing the denial includes Saturdays, Sundays, and legal holidays, or establishing any method of computation. In the absence of such a provision, the method of computation is prescribed by § 2-4-108(2), and the respondents had until Monday, November 24, 1997, to mail the letter refusing the claimant's request for a change of physician. Because the ALJ ruled to the contrary, his order must be reversed.
Further, our ruling is not contrary to the holding in Gianetto Oil Co. v. Industrial Claim Appeals Office, supra. In Gianetto, the claimant mailed his request for a change of physician on January 31, 1995, the insurer received the request on February 6, 1995, and the insurer mailed its denial on February 27, 1995. The insurer argued that because it received the request on February 6 it had until Monday, February 27 to mail the denial. However, the court of appeals agreed with our ruling that the twenty days began to run from the date the claimant mailed the request, not the date the insurer received the request. Therefore, the insurer had until February 20 to deny the request.
Significantly, the Gianetto decision did not reach the question of whether the respondents' time for mailing the denial would have been extended to Monday, February 27 had the claimant's request been made on February 6 rather than January 31. To the contrary, the court expressly stated that the "sole issue on appeal is whether the Panel properly construed § 8-43-404(5)(a) to require that an insurer respond to an authorization request within 20 days of mailing of the written request." Consequently, the Gianetto court was not required to reach the issue raised by this appeal, and it did not purport to do so.
Under these circumstances, we need not reach the question of whether C.R.C.P. 6(a) applies in workers' compensation cases. Because we hold that § 2-4-108 decides the matter, it unnecessary to consider the applicability of the rules of civil procedure. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (refusing to apply Colorado Rules of Civil Procedure where the rule was found to be inconsistent with the express statutory provisions of the Workers' Compensation Act). Nevertheless, we note that the rule under the statute and the result under C.R.C.P. 6(a) would appear to be the same.
IT IS THEREFORE ORDERED that the ALJ's order dated March 10, 1998, is reversed insofar as it ordered a change of physicians and required the respondents to provide the treatment recommended by the new physician.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed November 20, 1998 to the following parties:
Willard Wyatt, 14470 E. 13th Ave., B-18, Aurora CO 80011-3714
Office Depot, Inc., P.O. Box 5093, Boca Raton, FL 33431-0893
Dawn Kaup, Lumbermens Mutual Casualty Co., P.O. Box 5347, Denver, CO 80217-5347
John M. Connell, Esq., 1675 Larimer St., Ste. 710, Denver, CO 80202 (For the Claimant)
Karen R. Wells, Esq., 3900 E. Mexico, Ste. 1000, Denver, CO 80210 (For the Respondents)
BY: ______________________