Opinion
No. 77-494
Decided April 27, 1978. Opinion modified and as modified petition for rehearing denied May 25, 1978. Certiorari denied July 3, 1978.
Workmen's compensation claimant sought review of Industrial Commission order that terminated his temporary disability benefits.
Petition Dismissed
1. APPEAL AND ERROR — Appellate Court Rulings — Denial — Motion to Dismiss — Petition for Review — Lack of Jurisdiction — Not Establish — "Law of the Case" — Issue Again Considered. Although during pendency of petition to review Industrial Commission order, the Court of Appeals denied two motions to dismiss the petition for lack of jurisdiction, those rulings did not establish a "law of the case" so as to preclude the Court from again addressing the issue of whether jurisdiction of the subject matter was present.
2. WORKERS' COMPENSATION — Petition for Reconsideration — Not Timely Filed — Motion to Industrial Commission — Amend Caption — Petition for Review — Not — Substantial Compliance — Jurisdiction Absent. Where petitioner seeking review of Industrial Commission order failed to file a timely petition with the Commission seeking its reconsideration of its decision, but instead merely filed a petition to review in the Court of Appeals, his subsequent motion, granted by the Industrial Commission, which purported to permit him to relabel his petition for review as being a petition for reconsideration did not suffice to establish substantial compliance with the statutorily mandated review procedures, and thus, their being no timely petition for reconsideration filed, the Industrial Commission and the Court of Appeals was without jurisdiction to review the matter.
Review of Order of the Industrial Commission of the State of Colorado
Sterling, Simon Rubner, Paul D. Rubner, Steven M. Furman, for petitioner.
Fred B. Dudley, Richard G. Fisher, Jr., for respondents State Compensation Insurance Fund and Straight Creek Constructors.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, John Kezer, Assistant Attorney General, for respondent Industrial Commission of the State of Colorado and Juereta P. Smith.
Petitioner, Thomas Sanchez, seeks review of that portion of an order of the Industrial Commission which terminated his temporary disability benefits. We conclude that we have no jurisdiction to review the order, and we therefore dismiss the petition.
On November 17, 1976, the Industrial Commission entered an "award" which approved an earlier referee's supplemental order awarding petitioner permanent partial disability and terminating his temporary disability entitlement. On the fifteenth day thereafter, December 2, 1976, Sanchez filed a petition to review that award in this court. He simultaneously filed a notification copy with the Commission. Sometime later, Sanchez became aware that § 8-53-106, C.R.S. 1973, required that the initial review of any award of the Commission must be made by the Commission itself. He thereupon sought permission from this court in late January, 1977, to withdraw his petition, which prompted respondent to file a motion to dismiss the petition for lack of jurisdiction. The respondent's motion was denied by this court.
On February 28, 1977, the petitioner moved the Industrial Commission to permit him to amend the caption of his December 2, 1976, petition to designate it as a petition for reconsideration of the award by the Industrial Commission. The Industrial Commission granted this motion, and on May 16, 1977, the Commission purported to enter a final order, approving its November 17, 1976, determination. Petitioner then filed with this court a second petition directed to the May 16 order. Again, the respondent moved this court to dismiss petitioner's appeal for lack of jurisdiction, and again, such motion was denied.
Now, in its appellate brief, the respondent argues for the third time that when fifteen days passed without a petition for reconsideration of the November 17, 1976 order, both the Industrial Commission and this court were without jurisdiction to conduct a review. Respondent asserts that jurisdictional challenges may be neither waived nor lost, and that our earlier summary dismissals of these challenges do not preclude us from, at this time, scrutinizing our jurisdiction to determine this appeal.
Sanchez asserts, without supporting citation, that our earlier dealings relative to this issue are "res judicata." He alternatively argues that even if we again consider the jurisdictional issues, the proceedings for review must be allowed to proceed because he has "substantially" complied with the fifteen day requirement of § 8-53-106, C.R.S. 1973.
Subject Matter Jurisdiction — "Res Judicata?"
[1] Although we have previously denied motions by the respondent to dismiss this petition for lack of jurisdiction, we hold that we may again determine whether jurisdiction of the subject matter lies in this court. Subject matter jurisdiction relates to the power or authority of the court to deal with a particular case — it either exists or it does not. The parties cannot confer subject matter jurisdiction upon the court, nor may the court confer it upon itself. See Thorne v. Ornauer, 6 Colo. 39 (1881). Thus, the plaintiff's notion that a "law of the case" principle binds us, because of our earlier rulings on the jurisdictional aspects of this case, is erroneous.
Substantial Compliance
As to the petitioner's assertion that he substantially complied with the statutory review procedures, we disagree.
Section 8-53-106, C.R.S. 1973, provides that any party dissatisfied with an order of the Commission may seek review by the Commission by filing a petition so requesting within fifteen days of the order. These requirements are unmistakably jurisdictional in nature. See Logan County Hospital v. Slocum, 165 Colo. 232, 438 P.2d 240 (1968). Furthermore, §§ 8-53-107 and 108, C.R.S. 1973, make it clear that if there is a failure to comply with § 8-53-106, C.R.S. 1973, there can be no subsequent review or appeal.
It is interesting to note that the corresponding section of the Colorado Employment Security Act was amended in 1976 to provide that "Petitions for review may be accepted out of time . . . for good cause shown and in accordance with regulations adopted by the commission." See § 8-74-106(1)(b), C.R.S. 1973 (1976 Cum. Supp.). The Workers' Compensation Act, with which we deal today, contains nothing of this sort.
The petitioner cites Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970), as authority for his "substantial compliance" theory. 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. This is not the case before us. The Industrial Commission, in the instant case, was not asked to review its earlier decision. Rather, as required by § 8-53-110, C.R.S. 1973, it was merely notified of the petitioner's appeal to this court. If we were to permit the respondent to change his mind after the lapse of two months, and to erase all problems by retroactively relabeling his original notice of appeal, we would be robbing § 8-53-106, C.R.S. 1973, of that finality which it presently insures to all parties at the end of fifteen days.
[2] We therefore conclude that the November 17, 1976 order of the Industrial Commission became final, and not subject to review, when no petition for review was filed seeking review by the Commission within fifteen days. The Commission's order of May 16, 1977, therefore, is void. The Industrial Commission was without jurisdiction to review this matter, as are we.
Petition dismissed.
JUDGE RULAND and JUDGE BERMAN concur.