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Janssen v. Industrial Claim Appeals Office of the State of Colorado9/27/2001
JUDGMENT AFFIRMED
Division V
Rothenberg, J., concurs
Sternberg, J., dissents
Prior Opinion Announced April 26, 2001, WITHDRAWN Petition for Rehearing GRANTED
In this workers' compensation proceeding, Michael E. Janssen, D.O., seeks review of a final order of the Industrial Claim Appeals Office (Panel) requiring him to repay Linda Zarlingo (claimant) $558.22 for deposition preparation fees that were in excess of the prescribed amount under the medical fee schedule set forth in a Department of Labor & Employment regulation. He contends that the Administrative Law Judge (ALJ) lacked authority to order the repayment because the Director of the Division of Workers' Compensation has no statutory authority to establish a fee schedule for physicians in connection with litigation services. We affirm.
Claimant asserted a claim for workers' compensation benefits resulting from a work-related injury. Her employer notified Janssen that he was to be deposed in conjunction with claimant's case, although he was not the treating physician. Janssen asked to review the transcript of the treating physician's deposition in preparation for his own deposition. Janssen's office informed claimant that he charged $600 per hour as a consulting fee and that he expected to spend ninety minutes reviewing the deposition. Claimant paid Janssen's $900 fee, but informed him that she would ask the ALJ to order a reduced rate of payment.
Claimant filed a motion with the Executive Department of the Division of Administrative Hearings, asserting that under Rule XVIII(F) of the Workers' Compensation Rules of Procedure, physicians are limited to charging $227.85 per hour for conferences and preparation of special reports. Claimant asked the ALJ to apply this regulation to establish a reasonable payment amount for Janssen's services.
The ALJ agreed with claimant and ordered Janssen to remit to her what the ALJ determined to be an overpayment of $558.22, based upon Janssen's ninety-minute review of the deposition.
Janssen filed a petition for review, but the ALJ concluded that a supplemental order was not necessary. He forwarded the matter to the Panel, which issued a final order affirming the order of repayment.
Janssen appeals from this order.
In April 2001, this division dismissed Janssen's appeal as untimely. However, in his petition for rehearing, Janssen asserts that his appeal was timely because he was entitled to a three-day extension for mailing of the notice of appeal under C.A.R. 26(c). We grant his petition for rehearing and withdraw the prior opinion.
I. Timeliness of Notice of Appeal
As a threshold matter, we address Janssen's contention that this court did not lack jurisdiction to consider his appeal because, under C.A.R. 26(c), he was entitled to a three-day extension of time to file his notice of appeal because he received the Panel's order by mail. We agree.
C.A.R. 3.1 provides that an appeal from a final order of the Panel "shall be in the manner and within the time prescribed by statute." Pursuant to § 8-43-301(10), C.R.S. 2000, a party seeking review of the Panel's order must file a notice of appeal within twenty days after the date of the certificate of mailing of such order. See also § 8-43-301(2), C.R.S. 2000.
However, C.A.R. 26(c) provides that " henever a party is required or permitted to do an act within a prescribed period after service of a paper upon him and the paper is served by mail, three days shall be added to the prescribed period."
The facts relating to this issue are not in dispute. Here, th
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