Opinion
July 7, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ott, Caskins, Castillo & Rhodes, Denver, for petitioner.
No appearance for respondents.
SILVERSTEIN, Chief Judge.
The primary issue in this workmen's compensation appeal is whether the petition of claimant Newell to reopen her claim is barred by C.R.S.1963, 81--14--19. That section of the statute provides that in cases in which compensation has been paid the Industrial Commission may reopen and review the claim, 'at any time within two years after date last payment becomes due and payable or within six years from the date of accident, whichever is longer.'
The Commission determined that the statute had run and dismissed the petition. We affirm.
Here the accident occurred on April 26, 1964. The petition to reopen was filed on May 6, 1970. Newell does not raise any issue as to the six year limitation but asserts that a payment made to her on December 21, 1967, included sums which became 'due and payable' within two years prior to May 6, 1970. The record does not support this contention.
The December 1967 payment was made following a previous petition of claimant to reopen to which the carrier filed an admission of liability 'for compensation for disability * * * beginning 5--5--64.' The admission of liability was accepted by claimant who requested payment in full, since, 'the disability payments have already accrued.' After receiving the acceptance of the claimant, the Commission approved the admission of liability on December 1, 1967, and the payment in full was made on December 21, 1967.
The record is clear that the December 1967 payment operated retroactively since all payments under the admission of liability were due and payable prior to that date. Therefore the two year statute began to run from the date of the award, December 1, 1967. Dr. Pepper Bottling Co. v. Industrial Commission, 134 Colo. 238, 301 P.2d 710. More than two years having elapsed between that date and the filing of the petition to reopen the claim, the final order of the Commission dismissing the petition because it was beyond the statutory limitation was correct.
The other asserted errors are therefore moot.
Order affirmed.
DWYER and PIERCE, JJ., concur.