W. C. No. 4-324-437.Industrial Claim Appeals Office.
March 16, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated October 4, 2006, that denied the claimant’s motion to reconsider an order dismissing his petition to review and also denied claimant’s alternative motion for an enlargement of time in which to file a petition to review. We affirm.
The pertinent facts do not appear to be in dispute. The claimant sustained an admitted injury to his low back. The ALJ entered an order dated August 17, 2006 and mailed on the same day, denying the claimant’s request for medical benefits in the form of narcotic medications. The claimant filed a petition to review with a certificate of mailing dated September 11, 2006. The ALJ entered an order dated September 19, 2006 dismissing the petition to review because it was not timely filed within 20 days as required by § 8-43-301(2), C.R.S. 2006. The claimant filed a motion to reconsider the order of August 17, 2006 and in the alternative the claimant sought an order granting an enlargement of time to file the petition to review. In an order dated October 4, 2006 the ALJ dismissed the claimant’s motion to reconsider and dismissed the motion for an enlargement of time. The claimant filed a petition to review the ALJ’s order of October 4, 2006.
On appeal the claimant argues that his petition to review the August 17, 2006 order was not untimely because the C.R.C.P. 6(e) provides that whenever a party may act by mail three days shall be added to the prescribed period and his petition to review was filed within the three day mailing period.
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The underlying issue presented is whether the claimant’s petition for review of the ALJ’s order denying medical benefits was timely filed under § 8-43-301(2). Section 8-43-301(2) provides that an ALJ’s order is final unless the dissatisfied party files a petition for review within twenty days of the certificate of mailing of the order. It is undisputed that the claimant’s petition for review of the ALJ’s order denying benefits was not filed within twenty days of the date of the certificate of mailing of that order. The statutory time limits governing appellate review of workers’ compensation decisions are jurisdictional Wal-Mart Stores, Inc. V. Indus. Claim Appeals Office, 24 P.3d 1
(Colo.App. 2000). Thus absent the filing of a timely petition to review, we lack jurisdiction to review the ALJ’s order. See Schneider Nat’l Carriers, Inc. Indus. Claim Appeals Office, 969 P.2d 817 (Colo.App. 1998); Buschmann V. Gallegos Masonry, Inc. 805 P.2d 1193 (Colo.App. 1991).
The rules of civil procedure do not apply in a workers’ compensation proceeding if they are inconsistent with or in conflict with the statutory scheme. C.R.C.P. 81(a). The Court of Appeals has rejected the argument that the statutory time limit for filing a petition to review an ALJ s order may be extended by C.R.C.P. 6(e). Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App. 1995). In our view Digital Equipment Corp. v. Industrial Claim Appeals Office, supra, is dispositive of the claimant s argument. We reject the claimant’s argument that C.R.C.P. 6(e) extends by three days the time for filing a petition to review. See Meszler v. Freedom Communications, Inc. W. C. No. 4-488-976 (January 14, 2003).
The claimant contends that ALJ’s erred in his order dated October 4, 2006 by dismissing the claimant’s motion to reconsider and dismissing the motion for an enlargement of time because of the presence of excusable neglect justifying an extension of time to file the petition to review. We disagree.
The requirements of § 8-43-301(2) are jurisdictional, and must be strictly enforced. Buschmann v. Gallegos Masonry, Inc., supra. Moreover, jurisdiction may not be conferred by waiver, consent, or estoppel Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984). The claimant has not denied that the petition to review was filed beyond the twenty day statutory time limit. Thus, the appeal must be dismissed unless the claimant’s allegations of “excusable neglect” provide a legal basis for avoiding the jurisdictional requirements of the statute. Section 8-43-301(2) contains no provision permitting the late filing of a petition to review based on “excusable neglect” or for good cause shown, and we may not read such provisions into the statute. Se Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54
(Colo.App. 1995). Thus, there is no statutory basis for accepting the claimant’s untimely petition to review, even if the factual allegations concerning excusable neglect are true. Ryckman v. American Medical Response Inc. W. C. No. 4-376-793 (June 9, 2000).
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Because we conclude that the ALJ did not err in ruling that the time for filing the petition to review was not extended, and that the claimant s request was untimely, it is unnecessary to address the remaining issue of whether the order dismissing the claim for narcotic medication was supported by substantial evidence.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 4, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
___________________________________ Thomas Schrant
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Daniel Speier, 2222 East 8th Street, Lot 135, Pueblo, CO 81001
Knight Manufacturing Company, 701 Cherry, Greeley, CO 80632
Sentry Insurance, Dan Jovanovich, P.O. Box 8032, Stevens Point, WI 54481
McDivitt Law Firm, P.C., Sheila Toborg, Esq., 19 E. Cimarron Street, Colorado Springs, CO 80903 (For Claimant)
White Steele, P.C., Ted A. Krumreich, Esq., 950 17th
Street, 21st Floor, Denver, CO 80202 (For Respondents)
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