Summary
In Prager, the claimant testified that she did not timely file a claim because the workers' compensation insurer sent her a letter advising her that she had no right to compensation.
Summary of this case from In re Emrich, W.C. NoOpinion
March 23, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 409
White & Steele, Lowell M. Fortune, Denver, for respondents Lakeridge Theater and Argonaut Ins. Co.
Costello, Kofoed & O'Donnell, and Clarence W. Button, David L. Kofoed, Denver, for petitioner.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for respondent The Industrial Comm. of Colo.
DWYER, Judge.
This is a Workmen's Compensation case. Claimant Linda Carol Prager, a 17-year-old high school girl, was employed as a concession attendant at the Lakeridge Theater in Lakewood, Colorado. On January 5, 1968, while walking to her car after work, she slipped and fell on the icy surface of the theater parking lot. On January 15, 1969, she filed a notice with the Industrial Commission claiming compensation for injuries sustained as a result of her fall.
The Workmen's Compensation Act at C.R.S.1963, 81--13--5(2) provides that the right to compensation shall be barred unless a notice claiming compensation is filed within one year after the injury. This section also provides that this limitation shall not apply to a claimant having a 'reasonable excuse' for failure to file such notice. The claimant in the proceedings before the referee claimed that she had a 'reasonable excuse' for her failure to file her claim within one year, and she offered evidence to establish such excuse. The referee entered an order denying her claim. The order was approved, affirmed, and adopted as the final order of the Commission and claimant seeks reversal.
The referee recited evidence taken at the hearings and made the following findings and order:
'The claimant has not established to the satisfaction of the Referee that: (1) a reasonable excuse exists for the failure to file the notice claiming compensation within one year after the injury; and (2) the employer's rights have not been prejudiced thereby.
'IT IS, THEREFORE, ORDERED: That this claim for compensation and medical benefits be hereby denied and dismissed.'
The late filing of a claim may be excused when the employer or the employer's insurer has misled the claimant into thinking he had no claim. 3 A. Larson, The Law of Workmen's Compensation, s 78.45, citing City and County of Denver v. Phillips, 166 Colo. 312, 443 P.2d 379.
At a hearing before the referee the claimant testified that the reason she delayed filing her claim was that her employer and its insurer led her to believe that she was not entitled to compensation. She testified that she reported her accident to the manager of the theater two days after it occurred, and that she was advised by the manager that he would file any necessary claim papers. She testified further that an adjuster of her employer's insurance company interviewed her in connection with the accident. Subsequent to the interview, she received a letter from the adjuster stating that she had no right to compensation. Claimant stated that she relied upon the statements contained in this letter and believed that 'there wasn't any hope' of receiving any compensation.
The referee, in his order, recited some of the evidence adduced at the hearings. However, neither the referee nor the Commission made any specific evidentiary findings justifying its ultimate finding that claimant failed to establish a reasonable excuse for delay in filing her claim. Mere recitals of testimony taken by the Commission do not constitute findings of fact. State Compensation Insurance Fund v. Foulds, 167 Colo. 123, 445 P.2d 716. Claimant's excuse, so far as we know, or are empowered to determine, may or may not be valid. The validity of the excuse is dependent upon the existence or non-existence of facts and only the Commission is empowered to make this determination. A finding that the claimant has not established to the satisfaction of the referee that a reasonable excuse exists is insufficient. The applicable rule is stated in Metros v. Denver Coney Island, 110 Colo. 40, 129 P.2d 911. After stating that a finding that claimant failed to sustain the burden of proof was not a sufficient finding, the court said:
'If the commission is of the opinion, after weighing the evidence, that it does prove any element of claimant's case, it should find that element As a fact, and similarly, if of the opinion that claimant has failed to prove any element of his case it should find that element Not to be a fact.'
In the absence of the requisite evidentiary findings, this court is afforded no basis upon which it can properly review the Commission's final order. See Womack v. Industrial Commission, Colo., 451 P.2d 761; Weaver v. Industrial Commission, 69 Colo. 507, 194 P. 941.
The Commission also erred in adopting the referee's determination that it was incumbent upon the claimant to establish that the employer was not prejudiced by claimant's delay in filing her notice for compensation. If the Commission, on remand, determines that claimant has established a valid excuse for the late filing of the claim, it should not deny the claim on the basis that claimant has failed to prove that her delay prejudiced the employer. The burden of proof on the question of prejudice is not on the claimant. Colorado Fuel & Iron Corp. v. Industrial Commission, 129 Colo. 287, 269 P.2d 696.
The order of the Commission is set aside and the cause remanded to the Commission with directions to make findings of fact and to enter its award.
COYTE and PIERCE, JJ., concur.