Summary
In Pinkard Construction Co. v. Schroer, 487 P.2d 610 (Colo.App. 1971) (not selected for publication), the claimant himself prepared and signed the "supplemental report of accident," which indicated that the claimant had sustained a herniated disc. Under those circumstances, the court concluded that the supplemental report was sufficient to indicate that a compensable injury had occurred, and that the claimant was seeking compensation.
Summary of this case from In re Habteghrgis v. Denver Marriott, W.C. NoOpinion
Rehearing Denied June 8, 1971.
Page 611
Frickey & Myrick, William E. Myrick, Theodore M. Smith, Denver, for respondent James W. Schroer.
Alious Rockett, Francis L. Bury, William J. Baum, Denver, for petitioners.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado.
DWYER, Judge.
This is a workmen's compensation case. The final order of the Commission awarded compensation benefits to the claimant-employee, James W. Schroer. The employer, Pinkard Construction Company, and its insurer, the State Compensation Insurance Fund, have filed their petition seeking a reversal of that award.
The only issue is whether the employee filed his claim for compensation within one year of the date of his injury as required by the Workmen's Compensation Act.
Claimant injured September 23, 1966, in an accident which arose out of and in the course of his employment. Shortly thereafter, the employer reported this accident to the Commission by filing 'Employer's First Report of Accident' with the Commission. Later, in November of 1966, the employer prepared and filed a 'Supplemental Report of Accident' on a form prescribed by the Commission. This report was received by the State Compensation Insurance Fund on November 30, 1966, and by the Commission on December 14, 1966. The supplemental report contained the following printed question and handprinted answer:
'Does Employee Claim to have sustained any Permanent Disability? If so, Describe
'Employee has herniated disc in lower back which requires brace, pain medication & future operation.'
Claimant was a supervisor for the employer and it was his practice to fill out accident reports for the employer. The supplemental report in question was prepared by the claimant, signed by the employer and also signed by the claimant employee. No other notice claiming compensation was filed by claimant within one year of the date of his injury.
The Fund contested liability on the ground that the Industrial Commission had no jurisdiction because claimant had failed to file a timely claim on a form prescribed by the Commission. The order of the referee, which was approved and adopted by the Commission, makes the following findings of fact and conclusions:
'3. That the evidence, including the testimony of the adjuster for the respondent carrier, clearly shows, and the Referee so finds, that the statement appearing on Exhibit B, the employer's Supplemental Report of Accident, under Question 9, 'Does employee claim to have sustained any permanent disability?' If so, describe.' and the answer that follows, 'Employee has herniated disc in lower back which requires brace, pain medication & future operation.' constitutes substantial compliance by the claimant with the statutory notice requirements to the respondent carrier that the claimant was in fact claiming compensation as a result of his accidental injury of September 23, 1966.
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'7. That with the above finding that the filing and signing of the employer's Supplemental Report of Accident by the claimant herein constitutes his notice claiming compensation, the Referee finds that said notice claiming compensation was filed with the Industrial Commission on December 14, 1966, and within the one year statute of limitations.'
The petitioners contend that the findings and order of the Commission are erroneous because the claim was not filed on a form 'prescribed by the Commission for that purpose,' as required by C.R.S. 1963, 81--13--5. The petitioners argue that compliance with the requirement that the claim be on a form prescribed by the Commission is both mandatory and jurisdictional. We reject the petitioners' contentions and affirm the award of the Commission. In so holding, we rely upon the rationale of Colorado Auto Body, Inc. v. Newton, 160 Colo. 113, 414 P.2d 480. In that case the court considered the question of whether claimant's failure to file a claim on a form prescribed by the Commission deprived the Commission of jurisdiction. The court there held that although the form of notice was technically irregular, the Commission was not thereby deprived of jurisdiction, since there was no failure of actual notice to the Fund. The court in its opinion stated that there is a clear distinction delineated by the authorities between no notice of a claimed injury and mere irregularity in the form thereof. Where there is no notice, the Commission has no jurisdiction, but where there is only an irregularity in the form of the notice, the Commission has jurisdiction of the claim. The rule stated in Colorado Auto Body, Inc. v. Newton, Supra, is in accordance with the prevailing view which is stated in 3 A. Larson, The Law of Workmen's Compensation s 78.11, as follows:
'Even under a statute that specifically requires the filing of a claim, most courts will accept as the equivalent of a statutory claim any paper that contains the substance usually supplied by a formal claim, although the form may be defective.'
In the present case, as the Commission found, all of the essential elements of a claim were contained in a notice filed with the Commission. The fact that it was filed on a supplemental accident report form rather than on a prescribed claim form did not deprive the Commission of jurisdiction.
The order is affirmed.
COYTE and PIERCE, JJ., concur.