City of Boulder v. Payne

Decision Date17 April 1967
Docket NumberNo. 22376,22376
Citation426 P.2d 194,162 Colo. 345
PartiesCITY OF BOULDER, State Compensation Insurance Fund, and Industrial Commission of Colorado, Plaintiffs in Error, v. Paul W. PAYNE, Defendant in Error.
CourtColorado Supreme Court

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

Harold Clark Thompson, Alious Rockett, Francis L. Bury, Denver, Feay B. Smith, Jr., Denver, for plaintiffs in error City of Boulder and State Compensation Insurance Fund.

Ryan, Martin, Brotzman, Caplan & Knapple, Boulder, for defendant in error.

KELLEY, Justice.

This is a workmen's compensation case. It is here on a writ of error directed to a judgment of the District Court of Boulder County, which awarded compensation to the employee (claimant), the defendant in error. The plaintiffs in error are, the City of Boulder (the employer, or Boulder), State Compensation Insurance Fund (the fund), and the Industrial Commission of Colorado (the commission). The referee and the commission each, in turn, denied workmen's compensation benefits to claimant.

The complaint in the district court sets forth the basic facts with which we must deal in answering the question propounded by this writ of error.

In paragraph I thereof, it is alleged:

'That on or about September 21, 1959, plaintiff was employed as a fireman by the City of Boulder and that on said date sustained an accident arising out of and in the course of his employment. That plaintiff reported the accident to his employer and received medical treatment which was paid for by the Workmen's Compensation Insurance Fund. Plaintiff was advised by his physician that he was able to return immediately to his duties as a fireman and, therefore, plaintiff assumed that the matter was finished and he did not file a claim for compensation. During the period subsequent to the accident, the plaintiff experienced continuing medical difficulties, but was unable to determine the origin of his ills. On April 7, 1965, a neurosurgeon performed an operation on plaintiff in which it was discovered that the plaintiff suffered from calcium deposits and bone chips of his vertebrae which were affecting the nerves of the left side of his body. It was further established that the injury to his vertebrae was caused by the accident occurring in September of 1959.'

Boulder, the fund and the commission, defendants in the foregoing complaint, in effect admitted the above facts and that the claimant had taken all required procedural steps preliminary to filing a complaint in the district court, but denied liability, asserting that the claimant's failure to file a claim for benefits until August 23, 1965, barred such claim, by virtue of C.R.S.1963, 81--13--5.

The pertinent portion of the statute relied upon by the plaintiffs in error reads as follows:

'The commission shall have jurisdiction at all times to hear and determine and make findings and awards on all cases of injury for which compensation or benefits are provided by this chapter. The right to compensation and benefits, as provided by this chapter, shall be barred unless within one year after the Injury * * * a notice claiming compensation shall be filed with the commission. This limitation shall not apply to any claimant to whom compensation has been paid, or when it is established to the satisfaction of the commission within two years after the injury or death that a reasonable excuse exists for the failure to file such notice claiming compensation, and the employer's rights have not been prejudiced thereby, and the furnishing of medical, surgical or hospital treatment by the employer shall not be considered payment of compensation or benefits within the meaning of this section.' (Emphasis added.)

The pivotal word in the statute is Injury. The statute says, 'The right to compensation and benefits * * * shall be barred unless within one year after the Injury * * *.' (Emphasis added.) The commission's position was initially set out in a letter to a Dr. Gilman, who had written a letter in April 1965, in behalf of claimant, asking the commission how to 'reopen the case.' The commission's letter, over the signature of the referee whose decision was appealed to the district court, advised Dr. Gilman:

'Under the Workmen's Compensation Act it specifies that every individual who sustains an Accident in the course of their employment is to file a claim with this commission for compensation benefits within one (1) year from the date of the Accident.' (Emphasis added.)

Again, on July 22, 1965, in response to a letter from Boulder, the commission called attention to the same limitations section, and then commented:

'We have the original of the employer's First Report of Accident (your Exhibit A) Which shows on its face that this claimant was injured September 21, 1959, he quit work the same day but returned to work September 26, 1959. Had his First Report shown on its face that the claimant was off work more than seven days, we would have sent him one of our form letters advising of the necessity of filing a claim within one year along with claim blanks.' (Emphasis added.)

In the answer which the fund filed in the district court, it took the same position in this fashion:

'That the plaintiff above named wholly neglected and failed to file with the Industrial Commission of Colorado a claim for workmen's compensation benefits as required by law until on or about August 23, 1965, almost six years From the date of his alleged accident of September 21, 1959. Consequently, his claim for compensation benefits is barred by the statute of limitations (Section 84, Workmen's Compensation Act of Colorado, 81--13--5, C.R.S.1953 as amended).' (Emphasis added.)

The commission has used Injury and Accident interchangeably.

We have reviewed the Workmen's Compensation Act from beginning to end, the leading texts, prior decisions of this court and those from other jurisdictions. Although there is some disagreement, the majority of the courts distinguish between 'accident' and 'injury.' On this point we agree with the trial judge when he said:

'* * * My own reaction is that there is a difference between an accident and an injury, and the apparent facts of this case demonstrate the difference. We know the date when this accident occurred; we know that Mr. Payne sustained some injury for which he was treated at that time. And I would suppose that under these cases cited that he is barred now from any recovery on the basis of that initially discovered injury; but I gather from the testimony presented to the Industrial Commission that there was a second and separate injury not discoverable until months later. So it seems to me that there is a real distinction in this case between the date of the accident and the date of the discovery of the second and more serious injury to the arm and, apparently, to the back.'

The general assembly saw fit in 1963 to define both terms. They are the only terms in the Act which...

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  • Petrafeck v. Industrial Commission
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    ...179 Colo. 443, 501 P.2d 1047 (1972), Cert. denied, 412 U.S. 952, 93 S.Ct. 3000, 37 L.Ed.2d 1006 (1973). In City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967), we noted 'The Workmen's Compensation Act was enacted for a beneficent purpose--to allay the adverse economic effects upon ......
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    • Colorado Bar Association Colorado Lawyer No. 8-6, June 1979
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