Opinion
No. 72-412
Decided June 5, 1973. Rehearing denied June 26, 1973. Certiorari denied October 23, 1973.
After several years of litigation, award of workmen's compensation death benefits to dependents of deceased workman, was affirmed and claimants sought interest on the benefits during that period of litigation plus certain other costs involved. From Industrial Commission order denying such interest and costs, claimants appealed.
Order Set Aside
1. WORKERS' COMPENSATION — Interest — Matter of Right — Discretionary — Upon Application — Relieve Employer. Interest in workmen's compensation awards, when applicable, is a matter of right and is not discretionary with the director of the division of labor, the only matter being discretionary is whether, upon application and satisfactory showing, the director chooses to relieve the employer or insurer from the interest payments.
2. Employee — Not Required — File Claim — Interest — No Waiver — Failure — Include — Original Award. In workmen's compensation proceeding, there is no statutory provision which requires the employee or his beneficiary to file a claim for the payment of interest, and there is no waiver of that right to interest in an appropriate case by the failure of the claimant to succeed in having it made a part of the original award.
3. Interest — Began to Accrue — Date — Payments Ordered to Begin — Extended Litigation — Not Affect. Although extended appellate litigation delayed payment of workmen's compensation award to heirs of deceased workman for a period of six years, the Director of the Division of Labor had ordered payments to begin on June 21, 1966; and thus, by the terms of the statute, interest on the monthly payments began to accrue from that date as the payments became, in retrospect, due but unpaid during the appellate suspension.
Review of Order from the Industrial Commission of the State of Colorado
Hill and Hill, Alden T. Hill, for petitioners.
Wood, Ris and Hames, P.C., F. Michael Ludwig, for respondents TT Loveland Chinchilla Ranch, Inc., and The Travelers Insurance Company.
John P. Moore, Attorney General, John E. Bush, Deputy, Peter L. Dye, Assistant, for respondents Industrial Commission of Colorado and Director of Division of Labor.
Division II.
This is a review of an order of the Industrial Commission affirming the Director of Labor's supplemental order which denied claimants' petition for interest and costs on a workmen's compensation award previously entered. We reverse.
This case has twice been before the Supreme Court on other issues. A workmen's compensation claim was filed in behalf of Margaret B. Bourn and Lynn Maree Bourn, the widow and minor child of a deceased workman, Byron Bourn, who suffered a heart attack while on the job and died four days later. In T T Loveland Chinchilla Ranch v. Bourn, 173 Colo. 267, 477 P.2d 457, the Supreme Court held that the findings of the commission were not applicable in light of an amended statute, and it reversed and remanded the case for reconsideration. Following remand, benefits were awarded from which the employer and insurer initiated a review. In T T Loveland Chinchilla Ranch, Inc. v. Bourn, 178 Colo. 65, 495 P.2d 546, the Supreme Court affirmed the award.
The award which was affirmed was as follows:
"IT IS THEREFOR, ORDERED: That Respondents pay compensation at the rate of $228.23 per month, beginning May 21, 1966, first payment due June 21, 1966 . . . said payments to continue monthly thereafter until the total sum of $16,432.50 shall have been paid. . . ."
Since six years had elapsed from the date the award was due to be paid, the total sum was liquidated at the time litigation of the basic claim was completed. See 1965 Perm. Supp., C.R.S. 1963, 81-11-11(1)(c). The insurer, The Travelers Insurance Co., issued two checks to equal the sum of the periodic payments which would have been spread over the previous six years. The claimants' attorney, however, responded by a letter dated May 9, 1972, addressed to the insurer with copies to the supervising referee and the insurer's counsel, requesting additional payment for certain outstanding bills plus interest on the award at 8% and costs for transcripts. The supervising referee, by a latter to claimants' counsel dated May 18, 1972, stated that the insurer had agreed to pay the miscellaneous bills, but that the insurer refused to pay the interest and costs demanded. The referee indicated that he concurred with this result, and he offered to have the director enter a formal order denying the request so that a review could be taken. On September 12, 1972, claimants filed with the Industrial Commission a petition to order payment of interest and costs. A supplemental order was issued by the director on September 20, 1972, in which the director denied claimants' petition by finding that:
". . . payment of compensation benefits by the respondent carrier was made within a reasonable period of time after the cessation of litigation and that exact amount of compensation became due and payable and that compensation should not draw interest at the rate of 8%."
The Industrial Commission subsequently entered findings of fact and an order on October 9, 1972, in which the director's supplemental order was affirmed. From that order claimants have prosecuted this review.
Claimants contend that the two issues for appellate determination are: (1) the right of claimants to interest on the award from June 21, 1966, the date fixed by the award for monthly payments to begin, and (2) the rights of claimants to recover the costs of transcripts of evidence taken at three hearings in connection with their claim.
Respondents claim, however, the claimants are too late in raising the issue of interest and that this court lacks jurisdiction to consider claimant's review. We disagree.
[1,2] The statute applicable to interest in workmen's compensation awards is as follows:
"Every employer or insurance carrier of an employer shall pay interest at the rate of eight per cent per annum upon all sums not paid upon the date fixed by the award of the director for the payment thereof. Upon application and satisfactory showing to the director of the valid reasons therefor, said director, upon such terms or conditions as said director may determine, may relieve such employer or insurer from the payment of interest after the date of its order therefor. . . ." 1969 Perm. Supp., C.R.S. 1963, 81-13-9(2). (Emphasis supplied.)
Interest, when applicable, is a matter of statutory right and is not discretionary with the director. Interest applies automatically to an award without any action by claimants. The only matter which is discretionary is whether, upon application and satisfactory showing, the director sees fit to relieve the employer or the insurer from interest payments. No such application was made in the case at hand. Therefore, the right to interest on claimants' award attached upon the date of the award but was retroactive to the dates when the individual payments became due. Under the facts of this case any action by claimants to have interest included in a written order is nothing more than a claim of a statutory right to which they were entitled. There is no statutory provision which requires the employee or his beneficiary to file a claim for the payment of interest, and there is no waiver of that right to interest in an appropriate case by the failure of the claimant to succeed in having it made a part of the original award.
[3] Interest on unpaid sums as well as the basic award is not due and payable until the award is final; however, the amount of interest is calculated from "the date fixed by the award of the director for the payment thereof." 1969 Perm. Supp., C.R.S. 1963, 81-13-9. Consequently, since the final order of the director fixed the date of the first payment due to be June 21, 1966, interest began to accrue from that date on the individual monthly payments of $228.23 as they became, in retrospect, due but were not paid during appellate suspension.
In regard to claimants' contention that they should be awarded the cost of three transcripts necessary for the prosecution of their reviews, 1969 Perm. Supp., C.R.S. 1963, 81-14-18 provides that "costs as between the parties shall be allowed, or not, in the discretion of the court." Since the appellate courts of Colorado are the only state courts which have jurisdiction over Industrial Commission matters, this court has the discretion to award costs between parties. We hold that costs of the transcripts in this case should be awarded.
The order is set aside and the cause remanded with directions to the Industrial Commission to determine and award interest and costs consistent with this opinion.
CHIEF JUDGE SILVERSTEIN and JUDGE DWYER concur.