Opinion
No. 77-266
Decided September 29, 1977.
In review of workmen's compensation award, respondents moved to dismiss the petition alleging that petitioners had failed to comply with the mandatory administrative review procedures.
Motion Denied
1. WORKERS' COMPENSATION — Industrial Commission — Adopted Referee's Findings — Claimants — Petitioned for Review — No Requirement — Second Petition — Preserve — Rights of Judicial Review. In workmen's compensation proceedings, where Industrial Commission entered order adopting the findings of fact and award of referee, and claimants seeking compensation benefits timely filed a petition for review of that order, which petition was thereafter denied by the commission, the pertinent provisions of the Workers' Compensation Act do not require that a second petition for review be filed in order for the claimants to preserve their right of review in the Court of Appeals.
Motion to Dismiss Petition to Review Order of the Industrial Commission of the State of Colorado
Montgomery, Little, Young, Campbell McGrew, P.C., J. Bayard Young, H. Wayne Leiser, E. Ord Wells, Jack E. Murphy, for petitioners.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, John Kezer, Assistant Attorney General, for respondent, Industrial Commission of Colorado.
Bonner E. Templeton, James A. May, William J. Baum, for respondents, State Compensation Insurance Fund and City of Fort Morgan.
Subsequent to the parties' filing of briefs on the merits of a petition to review a final order of the Industrial Commission, the respondents State Compensation Insurance Fund and the City of Fort Morgan filed a motion to dismiss the petition alleging that the petitioners had failed to comply with mandatory administrative review procedures. We deny the motion.
On September 17, 1976, a referee denied petitioners' claim for dependency benefits under the Colorado Workers' Compensation Act. On September 30, 1976, petitioners filed a petition to review that referee's order. The matter was then referred to the Industrial Commission, and on January 20, 1977, the Commission entered its "Findings of Fact and Award" adopting the referee's order of September 17, 1976, as the order of the Commission.
On February 1, 1977, petitioners filed a petition to review the Commission's order of January 20, 1977. On March 10, 1977, the Commission entered its "Final Review Order" affirming its prior order of January 20, 1977. On March 29, 1977, petitioners filed their petition to review in this court.
Respondents argue that §§ 8-53-106 and 8-53-107, C.R.S. 1973, require petitioners to have filed an additional petition with the Industrial Commission seeking review of its March 10 "Final Review Order." Asserting that compliance with such a procedure is a condition precedent to this court's jurisdiction, they contend that Gerber v. Erbert Homes, 28 Colo. App. 210, 471 P.2d 428 (1970), requires that this petition to review be dismissed. That case, however, does not support such a contention, and we find respondents' argument to be totally without merit.
Section 8-53-107, C.R.S. 1973, provides that:
"No action, proceeding, or suit to set aside, vacate, or amend any finding, order, or award of the commission, or to enjoin the enforcement thereof, shall be brought unless the plaintiff shall have first applied to the commission for a review as provided in section 8-53-106. Such action, proceeding, or suit must be commenced within twenty days after the final finding, order, or award entered by the commission upon such review."
Respondents read the above language to require that a petitioner seek review by the Industrial Commission of its final order within 20 days of that order's entry. From this construction, they urge that petitioning the Commission for review of its January 20 order only was insufficient to comply with the Act.
Section 8-53-107, C.R.S. 1973, does not apply to petitions filed with the Commission to review its orders, but rather applies only to petitions filed in this court to review the Commission's denial of such petitions. That extent of the section's applicability is clear from its provision which makes application "to the commission for a review as provided in section 8-53-106," a prerequisite to review in this court. That section, 8-53-106, governs the procedures for review by the Commission, and differs from § 8-53-107 in requiring the filing of a petition for review within 15 days. Section 8-53-106(3), C.R.S. 1973. Further, § 8-53-106 contains no requirement that the review be sought of a final order of the Commission. And, in any event, that section provides that the Commission's order after consideration of the referee's award is final, except during the pendency before the Commission of a petition for review.
Here, the Commission's decision of January 20 "approved, affirmed and adopted as the Order of the Commission" the referee's findings of fact and award. The petitioners then timely filed their petition for review which the Commission denied in its March 10 order which "affirmed and approved as the Final Award of [the] Commission" its previous order.
[1] We decline to construe the above provisions as requiring petitioners to file a second petition for review with the Commission on the pretext that only after the Commission has one opportunity to reconsider its decision is that decision final and thus postured for the Commission's ultimate review. To give such a construction would serve absolutely no purpose other than further to delay termination of the proceedings and would transform the procedure for administrative review in workmen's compensation cases into a meaningless and never-ending charade. Carroll v. Industrial Commission, 69 Colo. 473, 195 P. 1097 (1921); cf. Hildreth v. Director of the Division of Labor, 184 Colo. 259, 520 P.2d 112 (1974). Accordingly, we conclude that this petition to review the Commission's order is properly before us.
Motion denied.
JUDGE COYTE and JUDGE KELLY concur.