City and County of Denver, Police Dept. v. Phillips

• Decision Date: 15 July 1968
• Docket Number: Nos. 22551 and 22552,s. 22551 and 22552
• Parties: CITY AND COUNTY OF DENVER, POLICE DEPARTMENT, and State Compensation Insurance Fund, Plaintiffs in Error, v. Douglas L. PHILLIPS, Sr., and Industrial Commission of Colorado, Defendants in Error. STATE COMPENSATION INSURANCE FUND, Industrial Commission of Colorado, and City and County of Denver, Police Department, Plaintiffs in Error, v. Douglas L. PHILLIPS, Sr., Defendant in Error.
• Court: Colorado Supreme Court

Page 379

443 P.2d 379

166 Colo. 312

CITY AND COUNTY OF DENVER, POLICE DEPARTMENT, and State

Compensation Insurance Fund, Plaintiffs in Error, v. Douglas L. PHILLIPS, Sr., and Industrial Commission of

Colorado, Defendants in Error.

STATE COMPENSATION INSURANCE FUND, Industrial Commission of

Colorado, and City and County of Denver, Police

Department, Plaintiffs in Error, v. Douglas L. PHILLIPS, Sr., Defendant in Error.

Nos. 22551 and 22552.

Supreme Court of Colorado, In Department.

July 15, 1968.

Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., Denver, for plaintiffs in error, City and County of Denver, Police Department and State Compensation Insurance Fund.

L. F. Butler, Denver, for defendant in error, Douglas L. Phillips, Sr.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for Industrial Commission of Colorado.

McWILLIAMS, Justice.

This is a 'heart' case and the two separate writs of error relate to an award of the Industrial Commission arising out of the claim of a Denver policeman for workmen's compensation benefits.

Douglas L. Phillips, hereinafter referred to as the employee, suffered a heart attack while on duty as a member of the Denver Police Department on December 16, 1958. He was shortly thereafter taken to the hospital and he remained off work for approximately four weeks. The employee then returned to his employment on a part-time basis for about two weeks, at which time because of the aforementioned heart attack he was again forced to leave work for about one month. He then returned to work, but again on a part-time basis only.

The employee filed his claim with the Commission on July 8, 1959, some six months and twenty-two days subsequent to the date of the aforementioned heart attack. The Fund thereafter filed a notice of contest, and the claim was then set for hearing before the referee.

After hearing, the referee found that the employee had sustained an injury in an accident arising out of and in the course of his employment and awarded compensation for temporary total disability and medical benefits. Determination of any permanent partial disability benefit was deferred until a later date.

In apt time the Fund filed a petition for review and the Commission thereafter on its review of the matter set aside the order theretofore made by the referee and entered an order denying the claim. Specifically, the Commission found that the employee 'sustained no accident arising out of and in the course of his employment on December 16, 1958.'

Thereafter the employee sought judicial review of the Commission's order denying his claim for compensation benefits. The trial court upon hearing found 'that the record of the Commission is inadequate in that it does not appear that the Commission has had an ample opportunity to hear and determine all the issues raised in the action' and accordingly remanded the matter to the Commission for further hearings 'upon all issues appearing in this case.' Just what additional issues were to be heard does not appear from the order of remand entered by the trial court.

In any event, shortly before a further hearing was about to be held by the referee, the Fund filed a motion to dismiss based upon the so-called six months statute, then appearing as C.R.S. '53, 81--13--5. After the matter was reheard, the referee on April 19, 1963 entered an order denying the employee's claim for benefits. In this order the referee specifically found, as he had before, that the employee had in fact sustained on December 16, 1958 an injury arising out of and in the course of his employment. However, the referee then went on to find that the claim was barred by the six months statute. In this regard, the referee stated that though the employee had indeed presented a 'reasonable excuse' for not filing his claim within six months after the accident, his 'reasonable excuse' was nevertheless not a 'legal excuse.' Therefore, it was on this ground only that the claim was denied.

Thereafter both the employee and the Fund filed petitions for review of the referee's supplemental findings and order. The Commission denied these petitions for review and approved and adopted as its own the referee's order of April 19, 1965.

Thereafter, by separate actions brought in the Denver District court both the employee and the Fund sought review of the Commission's order. The Fund complained about that part of the order which held that the employee had sustained an industrial accident which but for the late filing would have entitled him to benefits. The employee in turn complained about that portion of the Commission's order which found that his claim was barred by C.R.S. '53, 81--13--5, because his excuse, though 'reasonable,' was not a 'reasonable and legal excuse.'

These two actions were consolidated for hearing before the trial court. After hearing the trial court found, in effect, that there was evidence to sustain the Commission's finding that the employee had sustained injury in an industrial accident. However, the trial court held that the further finding of the Commission that the employee had failed to present both a reasonable and legal excuse was erroneous. Accordingly, the trial court entered appropriate judgments in each action directing the Commission to grant the employee's claim for compensation benefits. By these two writs of error, then, the Fund now seeks reversal of the judgments thus entered.

I.

It is first urged by the Fund that the referee's order of April 19, 1963 became a 'final' award because of the employee's failure to file a petition for review within the time provided by C.R.S.1963, 81--14--6(3). The portion of that statute pertinent to the present discussion reads as follows:

'* * * Such petition must be filed within fifteen days of any referee's order or award of the commission unless further time is Granted by the referee or the commission within said fifteen days, and unless so filed, said order or award shall be final. * * *' (Emphasis added.)

As noted, the referee's order which formed the basis for the subsequent award of the Commission was entered on April 19, 1963. Within fifteen days thereafter both the employee and the Fund filed with the Commission a request that the time to file a petition for review be extended beyond the fifteen days provided by statute. Each of these requests was Granted by the referee before the expiration of fifteen days from the date of the referee's order. In each instance counsel was granted fifteen days from and after the date he was supplied with the transcript to file his petition for review of the referee's order.

The record indicates that the transcript was given counsel on June 25, 1963 and therefore under the prior order each had to and through July 10, 1963 to file his petition for review. On July 9, 1963 counsel for the employee filed with the Commission a request for additional time within which to file a petition for review and the Fund was served on that same date with a copy of said notice. This request was granted, but not until July 16, 1963. So, the position of the Fund in this regard is that because the Commission did not actually Grant additional time Before the extended time within which to file...