Summary
In Matthews v. Industrial Commission, 44 Colo. App. 159, 609 P.2d 1127 (1980), the Court of Appeals determined that the Industrial Commission is an indispensable party to proceedings to review that Commission's final orders.
Summary of this case from Newman v. McKinley Oil Field ServiceOpinion
No. 79CA0975
Decided March 27, 1980.
Asserting that Director of the Division of Labor is an indispensable party, Industrial Commission moved for dismissal of petition for review of an order issued by it in which the Director had not been named a party.
Motion Denied
1. WORKMEN'S COMPENSATION — Director — Division of Labor — Not — Indispensable Party — Petition for Review — Industrial Commission Order. Though Director of Division of Labor has statutory duty to enforce and administer Workmen's Compensation Act, he is not an indispensable party to action to review Industrial Commission's order and failure to make him a party was not a jurisdictional defect which would require dismissal of petition for review of commission's order.
2. Industrial Commission — Only Indispensable Party — Petition to Review — Director — Party — Questions — His Statutory Duty. Only indispensable party to action to review Industrial Commission's order was Industrial Commission, and the Director of Division of Labor must be named as an indispensable party only where the appeal concerns a question involving a statutory duty which concerns a mandatory exercise of discretion by Director.
Motion to Dismiss Petition to Review Order of the Industrial Commission of the State of Colorado
Fogel, Keating Wagner, P.C., James M. Robinson, for petitioner.
J.D. MacFarlane, Attorney General, William Levis, Assistant Attorney General, for respondent Industrial Commission.
Glasman, Jaynes Carpenter, James L. Carpenter, for respondent Acme Western Casualty.
This matter comes before the Court upon the Industrial Commission's motion to dismiss the petition for failure "to name the Director of the Colorado Division of Labor as an indispensable party in accordance with § 8-53-107 and 108, C.R.S. 1973."
[1] The concept that the Director of the Colorado Division of Labor is an indispensable party to an action to review an Industrial Commission order is erroneous. The only indispensable party is the Industrial Commission. It is the Commission that makes the final determination of claims. The Director, referee, or deputy who hears the claim in its initial phases makes recommendations and findings which the Commission is free to overrule and set aside, § 8-74-104(1), C.R.S. 1973 (1979 Cum. Supp.), without any need to take additional evidence. See McGinn v. Industrial Commission, 31 Colo. App. 6, 496 P.2d 1080 (1972); In re Claim of Allmendinger v. Industrial Commission, 40 Colo. App. 210, 571 P.2d 741 (1977).
[2] The Director may be made a party or not, at the discretion of the petitioner, and the failure to make the Director a party is not a jurisdictional defect which would require the dismissal of the appeal. Section 8-53-108, C.R.S. 1973 (1979 Cum. Supp.). Only where the appeal concerns a question involving a statutory duty of the Director which concerns a mandatory exercise of discretion, see K. Davis, Administrative Law § 24.03 (1958), must he be named as an indispensable party. E.g., §§ 8-1-103(1) and 107(2), C.R.S. 1973. However, as a matter of law, the Director's statutory obligation under § 8-40-102, C.R.S. 1973 (1979 Cum. Supp.), "to enforce and administer the provisions of Articles 40 to 50" is purely ministerial in character. It is a cardinal principle that a public officer will carry out his official duties, such as enforcement of an order of the court, see Town of Frisco v. Brower, 171 Colo. 441, 467 P.2d 801 (1970), and therefore, the fulfillment of this statutory obligation does not make the Director an indispensable party.
Motion denied.
JUDGE PIERCE and JUDGE VAN CISE concur.