Opinion
No. 24026.
Decided May 25, 1970. Rehearing denied June 15, 1970.
From judgment reversing Industrial Commission which found that claimant had filed no claim for compensation within one year following his accident, that he had presented no reasonable excuse for such failure, and that the employer had been prejudiced by the delay, Commission brought error.
Reversed.
1. WORKERS' COMPENSATION — Filing — Notice — Claim — Critical Date — Date of Injury. The critical date involved in the one year statute of limitations with reference to filing a notice claiming compensation is not the date of the accident, but the date of the injury.
2. Time — Filing — Notice of Claim — Claimant — Recognition — Injury — Compensable. The time for filing notice of claim for compensation begins to run when claimant as a reasonable man should recognize nature, seriousness and probable compensable character of his injury.
3. Filing — Notice of Claim — One-Year Statute — Recognition — Injury — Compensable — Error — Remand — Issue. Where Industrial Commission and trial court erroneously used as critical time the date of accident as governing application of one-year statute of limitations for filing notice of claim for compensation and did not apply test that time for filing notice begins to run when claimant as reasonable man should recognize nature, seriousness and probable compensable character of his injury, held, under the circumstances, case would be remanded for determination of this issue and for a finding of fact thereon by the Commission.
4. Commission — Discretion — Excuse — Reasonableness — Prejudice — Delay — Filing — Claim — Fraud — Abuse. Since the Industrial Commission is the agency specifically entrusted with the discretionary power to determine the reasonableness of the excuse and the prejudice resulting from the delay in filing a claim for compensation, it is given broad discretion in determining those questions, and its decision will only be set aside upon a showing of fraud or abuse of discretion.
5. Delay — Filing — Claims — Reasons — Legally Justifiable. Not all reasons constitute legally justifiable excuses within the purview of the statute for a claimant's delay in filing a claim for compensation.
Error to the District Court of the City and County of Denver, Honorable Sherman G. Finesilver, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Peter L. Dye, Assistant, for plaintiff in error Industrial Commission of Colorado.
Richard G. Fisher, Jr., Fred B. Dudley, for plaintiffs in error Centennial Turf Club, Inc., and State Compensation Insurance Fund.
Litvak and Litvak, William Litvak, for defendant in error.
This case involves review on writ of error of a decision in the district court reversing the findings of the Industrial Commission in a proceeding under the Workers' Compensation Act.
On March 20, 1966 George Canfield, hereinafter referred to as the claimant, was injured in the course of his employment with the Centennial Turf Club, Inc., hereinafter referred to as the employer. Although the claimant sought medical treatment for his injuries the day following the accident and left him employment in June, 1966, he did not report the accident to his employer until some time shortly before August 12, 1966, when, at his request, he received and returned to the employer an employer's accident form. No claim for compensation was filed by the claimant with the Industrial Commission, hereinafter referred to as the commission, until May 24, 1967, some 14 months after the accident.
Following a hearing on the claim for compensation, the referee for the commission found that the claimant had filed no claim for compensation within one year following his accident on March 20, 1966, that he had presented no reasonable excuse for his failure to file within one year, and that the employer had been prejudiced by the delay. The referee ordered that the claim be dismissed for lack of jurisdiction.
The decision of the referee was reviewed and affirmed by the commission. Subsequently, the decision was reversed by the district court on review. In reversing, the court found that the claimant had established a reasonable excuse for his late filing as a matter of law, and that there was no showing of prejudice to the employer as a result of the delay. The commission seeks reversal of this judgment.
[1,2] We point out at the outset that the critical date involved in the one-year statute of limitations is not the date of the accident, but the date of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194. In Payne, we held that the time for filing a notice claiming compensation begins to run when the claimant as a reasonable man should recognize the nature, seriousness and probable compensable character of his injury.
[3] Both the commission and the trial court failed to apply this test, but used as the critical time the date of the accident. In this both were in error. In the present case, although the claimant, by his own testimony, sought medical treatment for his injuries the day following the accident, his injury was not immediately disabling, and he was able to continue with his employment uninterrupted until June 19, 1966. The circumstances of the case raise an issue of when the injury occurred and the one-year period commenced under the Payne test. Upon remand, that issue must be determined and a finding of fact made thereon by the commission.
It is necessary to the proper resolution of this case to determine whether the commission was justified in finding that no reasonable excuse exists for the one year's delay in the event the commission should find that under the circumstances here present the date of the accident and the date of the injury were the same.
[4] Since the commission is the agency specifically entrusted with the discretionary power to determine the reasonableness of the excuse and the prejudice resulting from the delay, it is given broad discretion in determining those questions and the decision of the commission will only be set aside upon a showing of fraud or abuse of discretion. Industrial Commission v. Newton Lumber Mfg. Col., 135 Colo. 594, 314 P.2d 297 (based on C.R.S. 53, 81-13-5 substantially reenacted in C.R.S. 1963, 81-13-5).
[5] We have previously noted that not all reasons constitute legally justifiable excuses within the purview of the statute. Silsby v. Tops Drive In Restaurant-Dutton Ent., Inc., 160 Colo. 549, 418 P.2d 525. In this case, while the claimant has demonstrated his reason for the delayed filing of his claim, we cannot say that the reason given compels the commission, as a matter of law, to accept it as a legally justifiable excuse.
The judgment is reversed and the cause remanded to the district court with directions to remand the same to the Industrial Commission for further proceedings consistent with the views herein expressed.
MR. JUSTICE GROVES specially concurring.