W.C. No. 4-247-158Industrial Claim Appeals Office.
May 6, 1999.
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which denied and dismissed their request for specific findings of fact and conclusions of law. The respondents argue that the ALJ erred in dismissing the request for specific findings because the timeliness of the request depends on the date of mailing, not the date of receipt. We affirm.
The facts are undisputed. On November 5, 1998, the ALJ issued a summary order reopening the claim and awarding permanent total disability benefits. The order was mailed to the parties and their respective attorneys on the same date.
On November 19, 1998, counsel for the respondents signed a request for specific findings of fact and conclusions of law. The request bears a “certificate of service” stating that it was mailed to the Division of Administrative Hearings and opposing counsel on November 19. However, the request bears a date stamp stating that it was not received by the Division of Administrative Hearings until December 3, 1998.
Counsel for the claimant filed an objection to the request arguing that it was not timely filed under § 8-43-215, C.R.S. 1998 (may request specific findings within fifteen days after mailing of summary order). On December 14, 1998, the ALJ entered his order denying and dismissing the respondents’ request for specific findings of fact and conclusions of law. The ALJ concluded that the request or specific findings was not made until it was received by the Division of Administrative Hearings.
On review, the respondents contend that a “request” for specific findings of fact and conclusions of law is complete on the date of mailing, as shown by the certificate of mailing, not the date of receipt by the Division of Administrative Hearings. The respondents argue that their interpretation harmonizes §8-43-215 with § 8-43-301(2), C.R.S. 1998, which provides that petitions to review orders of ALJs may be “deemed filed on the date of mailing, as determined by the certificate of mailing.” The respondents also contend that their position is consistent with the rules of procedure, as well as prevailing practice at the Division of Administrative Hearings. We are not persuaded.
The statutory time limits governing appellate review of workers’ compensation decisions are usually considered jurisdictional. Consequently, such provisions are strictly enforced by the courts. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991). We have previously ruled that failure timely to file a request for specific findings of fact and conclusions of law bars review of a summary order because §8-43-215 provides that “such request shall be a prerequisite to a petition to review under section 8-43-301.” Royce v. Bullwhackers Casino, W.C. No. 4-244-932 (July 25, 1996).
The pertinent provisions of § 8-43-215 state:
“Any party dissatisfied with a summary order made request specific findings of fact and conclusions of law in writing within fifteen days after the date of the certificate of mailing of the summary order. Such request shall be a prerequisite to a petition to review under section 8-43-301, and such request shall stay the time within which to file a petition to review until after the mailing of the specific findings and conclusions. Thereafter, time limits shall be governed by section 8-43-301. Specific findings of fact and conclusions of law requested pursuant to this section shall be completed within twenty-five days after such request.”
Here, the question presented is whether a “request” for specific findings is made when the request is mailed, or when it is received by the Division of Administrative Hearings. In interpreting the statute we must first look to the language and give the words and phrases their plain and ordinary meanings Snyder v. Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). To the extent there is any ambiguity, we may read the statute in relation to other provisions of the act, and attempt to give all provisions a consistent, harmonious, and sensible effect. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
As used here, the plain and ordinary meaning of the word “request” is the act of asking the ALJ to enter specific findings and conclusions. See Webster’s II New College Dictionary (1995). It is not until the ALJ receives the request that he can fulfill his duty to enter findings within twenty-five days. Further, the term “request” connotes actual communication to the ALJ, not the mere initiation of the process of communicating. The Court of Appeals reached a similar conclusion in Rice v. Industrial Claim Appeals Office, 937 P.2d 893 (Colo.App. 1997), when called upon to interpret the word “commence” as used in § 8-43-301(10), C.R.S. 1998. The court concluded that “actions are not commenced in the court of appeals until they are actually received.” Id. at 894.
We are not convinced by the respondents’ argument that §8-43-215 must be “harmonized” with § 8-43-301(2). The provision of § 8-43-301(2) which deems a petition to review filed on the date of mailing was first enacted in 1988. 1988 Colo. Sess. Laws, ch. 50 at 387. By 1988, the predecessor to § 8-43-215 already existed. 1987 Colo. Sess. Laws, ch. 51 at 391-392, ch. 54 at 401. If the General Assembly desired to apply the filing by mail provisions of § 8-43-301(2) to the predecessor to § 8-43-215, it could have done so in 1988. Because the General Assembly did not incorporate a filing by mail provision into § 8-43-215, we decline to legislate that result here. See Arkansas Valley Seeds, Inc. v. Industrial Claim Appeals Office, 972 P.2d 695 (Colo.App. 1998). Moreover, § 8-43-215 expressly states that “time limits shall be governed by section 8-43-301” after the filing of a request for specific findings. Thus, § 8-43-301(2) has no application to §8-43-215. Rice v. Industrial Claim Appeals Office, supra.
Neither are we persuaded by the respondents’ reliance on Rule of Procedure VIII (F), 7 Code Colo. Reg. 1101-3 at 24. The rule provides that in proceedings before the Division of Administrative Hearings the date of filing is the date of delivery to the Division of Administrative Hearings, or the date on the certificate of mailing when the document is mailed. However, the provision states that it applies only “for purposes of this rule.” Rule VIII governs the conduct of hearings, and cannot be viewed as defining the meaning of the word “request” in § 8-43-215.
Further, Rule of Procedure VII (A), 7 Code Colo. Reg. 1101-3 at 18, states that: “A party may appeal a summary order by filing a request for specific findings of fact and conclusions of law in accordance with section 8-43-215, C.R.S.” Thus, the specific provision of the rules governing requests for specific findings refers back to the statute, not Rule VIII. Therefore, we conclude that the rules shed no light on the question of whether a request for specific findings is accomplished by mailing or actual delivery.
We find no merit in the respondents’ assertions concerning prevailing practices at the Division of Administrative Hearings. First, there is no evidentiary basis for such assertions, and we may not take administrative notice of practices about which we know nothing. Second, the respondents’ assertion is directly contrary to the ALJ’s ruling, and we assume the ALJ is cognizant of prevailing practices in his own division. Finally, administrative practice cannot prevail in the face of express statutory language requiring a different procedure.
We have reviewed the holding in Riffee v. Penrose Hospital, W.C. No. 3-706-200 (September 14, 1998). That case did not concern the interpretation of § 8-43-215, and we do not find it dispositive. However, to the extent Riffee may be interpreted as inconsistent with the result we reach here, we choose not to follow it.
Thus, we hold that for purposes of § 8-43-215 a request for specific findings of fact and conclusions of law must be received by the Division of Administrative Hearings within 15 days after the date of the certificate of mailing of the summary order. Mere mailing of the request does not suffice to effect a request. As stated in Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995), the purpose for such a rule is that until some document is presented no appellate process has begun, and the General Assembly has prescribed the time within which the appellate process must be initiated.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 14, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
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 May 6, 1999 to the following parties:
John M. Fisher, 3802 Dall Pl., Ft. Collins, CO 80525
Karen Swenson, Wal-Mart Stores, Inc., 4625 S. Mason St., Ft. Collins, CO 80525
Insurance Company of the State of Pennsylvania, Jon Causseaux, Claims Management, Inc., 3901 Adams Rd., #C, Bartlesville, OK 74006-8458
Jan A. Larsen, Esq., 375 E. Horsetooth Rd., Bldg. 6, #200, Ft. Collins, CO 80525 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy