Opinion
Rehearing Denied July 16, 1970.
Page 735
Bruno & Bruno, Frank A. Bruno, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for defendant in error Industrial Commission of Colorado.
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., Harold Clark Thompson, Denver, for defendants in error City and County of Denver--Police Department and State Compensation Insurance Fund.
ENOCH, Judge.
This is a Workmen's Compensation case involving a dispute as to the period within which a claim may be reopened after an award.
Claimant was injured on November 29, 1960. An initial award was made by the Commission on March 30, 1961. The claimant's condition subsequently deteriorated, whereupon he filed his petition to reopen on October 21, 1965. The petition was granted and resulted in a supplementary award of $3,650.19 on November 2, 1965. Thereafter, on January 17, 1969, claimant filed another petition to reopen, alleging that his condition had further deteriorated. The Fund opposed this petition, claiming it was barred by the statute of limitation contained in C.R.S. 1963, 81--14--19. The Industrial Commission denied the petition without hearing. Claimant filed a petition for review of the order which was also denied by the Commission. Claimant then filed his complaint in the District Court, praying for review of actions of the Commission. The District Court affirmed the orders of the Commission.
This appeal presents two questions to be resolved:
1. Whether or not the Industrial Commission is divested of jurisdiction to entertain any further proceedings in the matter by virtue of the statute of limitation provision of C.R.S. 1963, 81--14--19.
2. Whether or not the Industrial Commission's denial of the petition to reopen, without hearing and entirely ex parte and without assigning any reason, constitutes an abuse of discretion.
I
C.R.S. 1963, 81--14--19 states in part:
'Upon its own motion on the ground of error, mistake or a change in condition, the commission, at any time within six years from the date of accident in cases where no compensation has been paid; or, at any time within two years after the date last payment becomes due and payable or within six years from the date of accident, whichever is longer, in cases where compensation has been paid, * * * may review any award and on such review, may make an award ending, diminishing, maintaining, or increasing compensation previously awarded, * * *.' The claimant insists that the $3,650.19 payment made on November 2, 1965 for permanent disability was prospective, i.e., that at the established weekly rate of $40.25, it would take 90.6 weeks to liquidate the amount and thus, final payment would be made on August 2, 1967. If the claimant's view is adopted, August 2, 1967 would be the base date for computation of the two year statute of limitation under the rule set forth in University of Denver et al. v. Industrial Commission of Colorado et al., 138 Colo. 505, 335 P.2d 292.
The facts in this case indicate otherwise. The notice of payment issued on November 2, 1965 stated the $3,650.19 payment covered a 634 day period between July 10, 1961 and April 5, 1963. Hence the payment was retroactive and Dr. Pepper Bottling Company et al. v. Industrial Commission of Colorado et al., 134 Colo. 238, 301 P.2d 710, is controlling. That case holds that the two year statute of limitation on an order operating retroactively runs from the date on which the Commission orders the retroactive award, rather than from the date on which the last payment would have been made had there been continuous monthly payments, during the time covered by the final award. We hold that the date on which the statute of limitation began to run was November 2, 1965. Consequently, claimant's second petition to reopen, filed on January 17, 1969, was barred by the statute of limitation.
II
In light of our determination that the claimant's petition to reopen was barred by the statute of limitation, it cannot be said that the Commission's denial constituted an abuse of discretion. It is well established that the Commission's power to review an award is discretionary and cannot be set aside except for fraud or a very clear showing of an abuse of discretion. The Commission need not conduct a hearing to determine the validity of the facts in a petition if in its opinion, the facts, if true, would present no basis for review. Service Supply Co. et al. v. Vallejos, Colo., 452 P.2d 387; Contes v. Metros, 113 Colo. 1, 153 P.2d 1000; Kokel v. Industrial Commission, 111 Colo. 188, 139 P.2d 259. Where the Industrial Commission reopens the case and changes or modifies the award, it is incumbent upon it to state its reasons for the change. However, it is not obligated to give its reasons for refusing to reopen the case. Kokel v. Industrial Commission, Supra.
We affirm the judgment of the District Court.
SILVERSTEIN, C.J., and DWYER, J., concur.