Summary
In Miller, the petitioner served a letter upon the Commission which, while it was not entitled "petition for reconsideration," contained all the elements of such a petition.
Summary of this case from Sanchez v. Straight Creek ConstOpinion
No. 70-137
Decided August 18, 1970.
Following award of medical expenses and denial of permanent disability, claimant's attorney, by written request, sought supplemental hearing. Referee held supplemental hearing, but reversed earlier award and denied claim. Industrial Commission found referee to be without jurisdiction to hold supplemental hearing and ordered reinstatement of original award. Claimant appealed.
Order Affirmed
1. WORKERS' COMPENSATION — Statute — Referee — Entered Order — Final — Unless — Petition for Review — Filed as Provided. In view of C.R.S. 1963, 81-14-4, it is clear that once a referee has entered an order, either allowing or denying a workmen's compensation claim, this order becomes final unless a petition for review is filed as provided by the statute.
2. Claimant's Attorney — Letter Requesting — Further Testimony — Amendment of Order — Entered in Record — Supplemental Hearing Held — Sufficient Compliance — Petition for Review. Where claimant's attorney within 15 days of referee's order wrote letter to referee requesting permission to present further testimony and stating specific reasons for amendment of order and where the letter was officially marked and entered in the record and in obvious response to it a supplemental hearing was ordered, the letter was in sufficient compliance with the statutory requirements so as to act as a valid petition for review.
3. To Obtain Review — Petition for Review — Fifteen Days — Transcript of Proceedings — Thirty Days After Petition. In order to obtain review of referee's order in workmen's compensation claim, not only must a petition for review be submitted within 15 days after referee's order, but furthermore a transcript of the proceedings must be filed within 30 days after submission of the petition for review.
4. Review of Referee's Order — Requirement — Transcript Filed — Thirty Days — Jurisdictional — May Not Be Waived — Not Complied With — Petition Must Be Stricken. In seeking review of referee's order in workmen's compensation claim, the statutory provision requiring that a transcript of the proceedings be filed within 30 days is jurisdictional in nature and may neither be waived nor consented to by the parties and if this provision is not complied with, the portion for review must be stricken and the order declared final.
5. No Transcript — First Proceedings — Referee — Without Jurisdiction — Supplemental Hearing — Commission Correct — Supplementary Hearing Order — Nullity — Reinstating — First Hearing Order. Where, upon petition for review, no transcript of first proceedings was submitted to referee, the referee was without jurisdiction to hold a supplementary hearing on petitioner's workmen's compensation claim, and Industrial Commission was correct in declaring order of the supplementary hearing a nullity, and in reinstating the order made after the first hearing.
Appeal From The Industrial Commission of Colorado.
Costello, Kofoed and O'Donnell, for petitioner.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Peter L. Dye, Assistant, for respondent The Industrial Commission of Colorado.
Yegge, Hall and Evans, James C. Perrill, for respondents Anheuser-Busch, Inc., and Zurich Insurance Company.
This case involves an appeal from an order of The Industrial Commission of Colorado. In order to fully understand the case, a chronological review of the facts is necessary.
On October 23, 1967, petitioner, Gary I. Miller, sustained injury to his back while employed by respondent Anheuser-Busch, Inc. On February 4, 1969, petitioner filed a claim for compensation with the Industrial Commission of Colorado. Respondents, Anheuser-Busch, Inc., and its insurer, Zurich Insurance Company, denied liability on the claim. Thereafter a hearing was held before the Referee on March 15, 1969, at which hearing claimant appeared in person without an attorney. The Referee issued an order on March 28, 1969, finding that the claimant was injured while employed by the respondent and that he had sustained no permanent disability on account of the accident, and ordering respondent to pay the necessary medical expenses which resulted within six months from the date of the accident.
In a letter sent to the Referee on April 8, 1969, appellant's attorney stated that he was representing claimant in all matters pertaining to appellant's claim and requested the Referee to amend his March 28 order so as to permit the presentation of medical testimony. This letter was received by the Referee on April 9, 1969, and entered as part of the record on that date. Thereafter a supplemental order was issued by the Referee on April 10, 1969, ordering that petitioner's claim be reset for further lay testimony.
A subsequent hearing was then held on May 15, 1969. At the conclusion of this hearing an order was issued declaring the claim barred by the statute of limitations.
Appeal from this order was then made to the Industrial Commission. The Commission held that the Referee had lacked jurisdiction to hold the second hearing. It based this holding on the grounds that no petition for review was filed within the 15-day limit and no transcript of the first proceedings was filed within the 30-day limit established by C.R.S. 1963, 81-14-6(3).
Although we concur with the Commission's holding as it pertains to the transcript of the proceedings, we disagree with its holding that no petition for review was filed.
In view of the applicable statute, it is clear that once a Referee has entered an order, either allowing or denying the claim, this order becomes final ". . . unless a petition for review is filed as provided in this chapter." C.R.S. 1963, 81-14-4.
The requirements for a valid petition for review are set forth in C.R.S. 1963, 81-14-6(3):
"Every petition for review shall be in writing and shall specify in detail the particular errors and objections. Such petition must be filed within fifteen days of any referee's order. . . ."
In the instant case it is apparent that the requirements set forth in the statute were fulfilled by the letter sent April 8, 1969, by counsel for petitioner. The letter stated specific reasons why the petitioner felt an amendment to the March 28th order was necessary. The letter was officially marked as being received and was entered as part of the record. In obvious response to this letter, the Referee, on the day after the letter was received, ordered a supplemental hearing to be held. We find, therefore, that, as this letter was in sufficient compliance with the requirements set forth by the statute, it acted as a valid petition for review.
[3,4] The second point raised by the Commission in its order of February 4, 1970, is correct. C.R.S. 1963, 81-14-6(3) is two-fold in its requirements. Not only must a petition for review be submitted within fifteen days after the referee's order, but furthermore a transcript of the proceedings must be filed within thirty days after submission of the petition for review. Unless filed within this allotted period the petition for review must be stricken and the order declared final. This provision of the statute is jurisdictional in nature and may neither be waived nor consented to by the parties. As pointed out in Logan County Hospital v. Slocum, 165 Colo. 232, 438 P.2d 240, the statute is mandatory in nature and, without strict compliance with its provisions, the referee must strike the petition for review.
Without submission of the transcript of the first proceedings, the Referee was without jurisdiction to hold a second hearing on this matter. Therefore the Commission was correct in declaring the order of the second hearing a nullity, and in reinstating the order made after the first hearing.
Order affirmed.
JUDGE ENOCH and JUDGE PIERCE concur.