Opinion
June 18, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1005
Ruth Casarez Andersen, Denver, for petitioner.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado (Ex-officio Unemployment Compensation Commission of Colorado).
COYTE, Judge.
Anderson's claim for unemployment compensation benefits was denied by a referee of the division of employment on the ground that it was untimely filed. Upon review, the Industrial Commission adopted and affirmed the decision of the referee. The order of the Industrial Commission is set aside.
Petitioner was injured on his job in September of 1971, and filed a claim with the Colorado State Compensation Insurance Fund for workmen's compensation. The claim was granted and petitioner was placed on a temporary total disability basis beginning October 15, 1971, at the maximum rate under the law then prevailing of $64.75 per week. On October 8, 1971, petitioner was separated from his employment. A document entitled 'Admission--Special Liability' was mailed to claimant on June 16, 1972. It was signed by the State Compensation Insurance Fund, the insurance carrier for the employer. It contained an admission of liability for a temporary total disability period from October 15, 1971, to May 22, 1972, and admitted liability for permanent partial disability in the amount of $2,820.45. Payments of workmen's compensation benefits to Anderson continued at the rate of $64.75 without interruption through April 9, 1973. Anderson testified that he understood the document to mean that the State Compensation Insurance Fund would not pay any medical expenses after the date of the document, June 16, 1972, since words to this effect were stamped on the document.
On May 3, 1973, claimant applied for unemployment compensation benefits. Claimant's application was denied on the ground that he failed to comply with 1969 Perm.Supp., C.R.S.1963, 82--4--12, which reads as follows:
'Any provision of the law to the contrary notwithstanding, a person who is separated from employment due to an accident or injury resulting in a temporary total disability, for which he has been compensated under section 81--12--2, C.R.S1963, as amended, shall, if otherwise eligible, be entitled to receive after the termination of the continuous period of disability, benefits under this article which were available and in effect at the time of separation from employment. Payment of benefits for a week under this section shall be made only if a claim therefor is filed within the four weeks immediately following the termination of the continuous period of total disability . . ..' (emphasis added)
The Industrial Commission affirmed and adopted the findings of the referee and claimant brought this petition for review.
The Commission argues that claimant's continuous period of total disability terminated on May 22, 1972, and that the admission of special liability put him on notice of that termination. The Commission maintains that, in order for claimant to bring himself within the requirements of the above-quoted statute, he should have applied for unemployment compensation benefits within four weeks of May 22, 1972. Claimant argues that he had no notice of the termination of his period of temporary total disability and that he relied upon the fact that the amount of weekly benefits remained the same from October 15, 1971, through April 9, 1973.
1969 Perm.Supp., C.R.S.1963, 81--12--4(2), provides that: 'The director shall determine the time when temporary disability terminates as to injuries coming under any provision of this section.' In the instant case, the record contains no evidence that the director at any time made a determination with respect to the temporary total disability of claimant. In addition, it should be pointed out that the only medical testimony in the record consists of a letter from Anderson's doctor, dated May 14, 1973, addressed 'To Whom it May Concern' which stated, 'Mr. Anderson appears to be in satisfaction (sic) condition and may return to work this date.'
The Commission relies upon the document entitled 'Admission--Special Liability.' However, this document was merely an admission on the part of the State Compensation Insurance Fund, and it does not constitute a determination by the director with respect to the admission stated therein.
Based upon the record before us, we conclude that the order was erroneous because of the absence of any evidence of compliance with the statutory requirement that the extent of temporary total disability be determined by the director. Therefore, the document entitled 'Admission--Special Liability' was ineffective to put claimant on notice of the termination of his period of temporary total disability.
Since we find that the procedures utilized in this case fail to comply with the statutory mandate, we need not consider claimant's contentions that the summary termination of his period of temporary disability operated to deny his rights of due process.
The order of the Industrial Commission is set aside and the claim remanded for entry of an appropriate award based on the record.
SILVERSTEIN, C.J., and ENOCH, J., concur.