Opinion
No. 71-276
Decided February 15, 1972. Rehearing denied March 14, 1972. Certiorari denied June 12, 1972.
Recipient of benefits for temporary total occupational disease disability sought further compensation as result of alleged recurrence of the disease. Following extensive proceedings, Industrial Commission determined it lacked jurisdiction to order further compensation. Claimant petitioned for review of this determination.
Order Set Aside
1. WORKERS' COMPENSATION — Claimant — Failed to File — Resumption of Benefits — Sixty-Day Period — May Bar Claim — Not Jurisdictional. Where Industrial Commission determined that claimant failed to file claim for resumption of occupational disease disability benefits within sixty days after recurrence of the disablement as is required by statute, that failure by claimant may operate as a bar to his claim; but does not operate to deprive the Commission of jurisdiction.
2. Industrial Commission — Failed to Reach Issue — Untimely Application — Should Bar Claimant — Remanded. Where Industrial Commission erroneously determined that claimant's failure to make timely application for resumption of occupational disease disability benefits constituted a jurisdictional defect in his claim, the Commission failed to reach the issue of whether this failure of claimant should operate as a bar to his claim; thus, determination of this issue being a function of the Commission, the case must be remanded to it for such determination to be made.
Review of Order from the Industrial Commission of the State of Colorado
Klingsmith, Russell French, P.C. Klingsmith, for petitioner.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Peter L. Dye, Assistant, for respondents The Director of the Division of Labor and Industrial Commission of Colorado.
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., for respondents State Compensation Insurance Fund and Kermac Nuclear Fuels Corporation.
Mike Hildreth has filed this petition to review a final order of the Industrial Commission denying his claim for compensation under the Colorado Occupational Disease Disability Act.
In February 1962, claimant, then employed as a mill operator for Kermac Nuclear Fuels Corporation, filed his claim for benefits under the Act. A hearing was held on the claim, and the Commission found that claimant suffered an occupational disease arising out of, and in the course of, his employment from inhalation of sulfuric acid fumes. The Commission further found that claimant was forced to quit work January 11, 1962, and claimant was awarded compensation for temporary total disability. This order terminated on April 4, 1962, when claimant was released for work with no permanent disability.
Claimant subsequently attempted to obtain further compensation and medical benefits for the alleged recurrence of his disablement.
The statutory authority of the Commission to order a resumption of compensation for an occupational disease is contained in C.R.S. 1963, 81-18-18, the pertinent portion of which is as follows:
"Where the disablement has terminated and within one year thereafter . . ., the disablement shall recur as a result of the occupational disease for which an award had been made, the commission may order resumption of compensation if claim therefor be made within sixty days after the recurrence of the disablement."
A formal claim for resumption of compensation was filed by petitioner on March 22, 1963. Prior to the filing of the formal claim, claimant's physicians had reported to the Commission that claimant was suffering a physical disability which they attributed to his occupational disease, and claimant had discussed his physical disability with an unidentified employee of the Commission.
On April 11, 1963, the Commission ordered the case reopened "on its own motion" and remanded the cause to a referee for a hearing on the merits. Respondents filed no petition for review of this order. However, no hearing on the merits was ever held. When the case came on for a hearing on the merits of petitioner's claim, the respondents questioned the validity of the Commission's order of April 11, 1963, and asserted that the Commission exceeded its jurisdiction in entering the order. Subsequent administrative proceedings, including numerous hearings before referees, administrative appeals, and an appeal to the district court, were devoted to resolving this issue. Ultimately, the Commission found that petitioner's disability recurred on December 20, 1962, and that neither his formal petition nor any document constituting a claim for resumption of benefits was filed within sixty days thereafter. Upon the basis of these findings, the Commission held it was without jurisdiction to order further compensation and that its order of April 11, 1963, was void.
The issue on appeal is whether the Commission has properly construed C.R.S. 1963, 81-18-18. The Commission construed the words "if claim therefor be made within sixty days after the recurrence of the disablement" as a jurisdictional requirement and held that the claimant's failure to make a claim within the sixty day period deprived the Commission of jurisdiction to order a resumption of compensation. This is an erroneous construction of the statute. Petitioner's claim for resumption of compensation was not filed within the sixty day period, but such failure did not deprive the Commission of jurisdiction.
The provision of the statute in question has never been construed by our Supreme Court. Of the courts which have considered the effect of a failure to make application to reopen a claim within the time limit of a statute, a majority have held that the defect is not jurisdictional but merely gives rise to an affirmative defense. 3 A. Larson, Workers' Compensation Law § 81.20.
In Mascitelli v. Giuliano Sons Coal Co., 157 Colo. 240, 402 P.2d 192, the court considered the effect of the running of the six year statutory period within which the Commission could review an award on the grounds of a change in condition under C.R.S. '53, 81-14-19. It was there contended that this provision was jurisdictional and that the failure of the Commission to act within the six year period deprived the Commission of jurisdiction. In rejecting this contention, the court held that the provision operated as a statute of limitations and that the running of the statute was tolled by the filing of a claim within the six year period.
In maintaining that the timely filing of a claim for resumption of benefits is jurisdictional, the respondents rely upon Vieweg v. B. F. Goodrich Co., 170 Colo. 71, 459 P.2d 759; Logan County Hospital v. Slocum, 165 Colo. 232, 438 P.2d 240; and Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282. These cases are not in point. They stand for the proposition that the procedural requirements for obtaining administrative or appellate review of the Commission's orders are mandatory and jurisdictional. They do not hold that statutes requiring claims to be filed within specified time periods impose limitations on the jurisdiction of the Commission.
[1] The failure of the claimant to file his claim within the sixty day period may operate as a bar to his claim, but it does not operate to deprive the Commission of jurisdiction.
[2] In holding that the petitioner's failure to file his claim within the sixty day period was a jurisdictional defect and dismissing the claim on that basis, the Commission failed to reach the issue of whether claimant's failure to make timely application for resumption of compensation should operate as a bar to his claim. Inasmuch as resolution of this issue in petitioner's favor would have materially altered the outcome of the proceedings below, the Commission's failure in this regard was prejudicial error.
It is the function of the Commission and not the function of this court to determine that issue, and, accordingly, the case must be remanded to the Commission.
The final order of the Commission denying the claim for resumption of compensation is set aside, and the cause is remanded to the Commission for further proceedings consistent with this opinion.
JUDGE COYTE and JUDGE PIERCE concur.