Opinion
No. 76-908
Decided November 3, 1977.
Workmen's compensation claimant sought review of Industrial Commission order awarding him 4% permanent partial disability.
Appeal Dismissed
1. WORKERS' COMPENSATION — Prerequisite — Judicial Review — Petition — Review Referee's Order — Review Industrial Commission's Order — Failure — Follow Statutory Procedure — Court of Appeals — Without Jurisdiction. Prior to filing a petition for review in the Court of Appeals, a workmen's compensation claimant must not only petition the referee and the Industrial Commission to review the referee's order, but he must also petition the Commission to review its own action on the referee's decision; thus, where workmen's compensation claimant failed to follow these statutory prerequisites to judicial review, the Court of Appeals lacks jurisdiction to consider his petition.
2. Appeal Procedures — Workers' Compensation Act — Complete — Administrative Procedure Act — No Applicability. The appeal procedures of the Workers' Compensation Act are complete and definitive and constitute an organic act which is self-operational without the need of supplementation from the Administrative Procedure Act; thus, the Administrative Procedure Act has no applicability to the procedures for review of workmen's compensation rulings.
Review of Order from the Industrial Commission of the State of Colorado
George A. Hinshaw, Willard B. Rogers, Jr., for petitioner.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, John Kezer, Assistant Attorney General, for respondents Industrial Commission of Colorado and Director of the Division of Labor.
James A. May, Francis L. Bury, R. S. Ferguson, for respondents S. S. Kresge Company and State Compensation Insurance Fund.
Claimant, Jack C. Maxon, seeks this review of an order of the Industrial Commission awarding him a 4% permanent partial disability. Respondents assert that the appeal must be dismissed. We agree.
Maxon was injured on November 23, 1973, during the course of his employment with the S. S. Kresge Company. A hearing was held before a referee and an initial order was issued. After a petition for review of that order was filed with the referee, he issued a supplemental order. A petition for review of the referee's supplemental order then was filed with the Commission itself. The Commission affirmed the referee's decision and, subsequently, the claimant filed a petition in this court to review the Commission's order.
Judicial review of an order of the Commission is available only if the procedure for review provided in the Workers' Compensation Act is followed. Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282 (1953); Gerber v. Erbert Homes, 28 Colo. App. 210, 471 P.2d 428 (1970).
The procedure for review under the Act is explained in § 8-53-106, C.R.S. 1973, which provides in part:
"(1) Any party in interest who is dissatisfied with the award entered by the referee . . . may file a petition with the referee . . . to review such award. . . . If the referee . . . makes a supplemental order . . . it shall be final unless a petition to review the same is filed with the commission.
"(2) The commission . . . upon a petition being filed with it to review . . . a referee's supplemental award, shall review . . . said case and shall enter its award thereon. The award of the commission shall be final unless a petition to review same shall be filed by a party in interest." (emphasis added)
The review procedure is detailed further in § 8-53-107, C.R.S. 1973, as follows:
"No action, proceeding, or suit to set aside, vacate, or amend any finding, order, or award of the commission, or to enjoin the enforcement thereof, shall be brought unless the plaintiff shall have first applied to the commission for a review as provided in § 8-53-106. . . ." (emphasis added)
[1] Thus, prior to filing a petition for review with this court, the claimant must not only petition the referee and the Commission to review the referee's order, but he must also petition the Commission to review its own action on the referee's decision. The purpose of such a petition is to bring to the Commission's attention special allegations of error made by it in modifying or affirming the referee's decision so that any error may be corrected without the necessity of judicial review. See London Guarantee Accident Co. v. Sauer, 92 Colo. 565, 22 P.2d 624 (1933). Consequently, since the claimant failed to follow the statutory prerequisites to judicial review, this court lacks jurisdiction to consider his petition.
[2] Nor, contrary to claimant's contention, is the Administrative Procedure Act, § 24-4-101, et seq. C.R.S. 1973, of any applicability of this case. The appeal procedures of the Workers' Compensation Act "are complete and definitive and constitute an organic act which is self-operational without the need of supplementation from the Administrative Procedure Act." In re Claim of Zappas v. Industrial Commission, 36 Colo. App. 319, 543 P.2d 101 (1975).
Claimant's other contentions concerning the appeal procedures are without merit.
Appeal dismissed.
JUDGE SMITH and JUDGE BERMAN concur.