Hard v. Industrial Commission

• Decision Date: 15 March 1971
• Docket Number: No. 24301,24301
• Citation: 482 P.2d 353,174 Colo. 51
• Parties: Stephen B. HARD, Plaintiff in Error, v. INDUSTRIAL COMMISSION of Colorado, State Compensation Insurance Fund, George Solis, Don Freedberg, and J. M. Van Lunsen, Defendants in Error.
• Court: Colorado Supreme Court

Page 353

482 P.2d 353

174 Colo. 51

Stephen B. HARD, Plaintiff in Error, v. INDUSTRIAL COMMISSION of Colorado, State Compensation Insurance Fund, George Solis, Don Freedberg, and J. M. Van Lunsen, Defendants in Error.

No. 24301.

Supreme Court of Colorado, En Banc.

March 15, 1971.

Alfred L. Capra, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for defendant in error Industrial Commission of Colorado.

Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., Denver, for defendants in error State Compensation Insurance Fund and J. M. Van Lunsen.

Craig A. Murdock, Denver, for defendant in error George Solis.

LEE, Justice.

This is a workmen's compensation case. Plaintiff in error, Stephen B. Hard, was respondent in the proceedings before the Industrial Commission and suffered an adverse ruling an favor of claimant, George Solis, who obtained an award for injuries received in an industrial accident.

Hard appeared at the hearings before the referee without benefit of counsel. After the adverse dicision of the referee, which was entered on July 17, 1968, and modified by a supplemental order on July 18, 1968, Hard employed counsel to seek reversal of the award.

On July 24, 1968, counsel for Hard filed a motion for rehearing in which he prayed that the Commission 're-open and rehear' the matter on the grounds that respondent Hard had not had an opportunity to consult with an attorney and was not represented by an attorney at the hearing, and that in the interest of justice respondent was entitled to be heard with counsel to show that he should not be held liable for claimant's compensation benefits. In response to this motion, the referee by letter notified respondent that the statute, C.R.S.1963, 81--14--6, regarding petitions for review of a referee's order, did not comprehend a motion for rehearing such as was filed by respondent. Respondent was further advised that his time to appeal expired on August 1, 1968. In response to this advice, respondent moved for additional time and was granted until August 12, 1968, to appeal.

Respondent did not, however, file a petition for review, nor did he furnish a transcript of the hearings for filing with the referee as required by C.R.S.1963, 81--14--6(3). Instead, respondent commenced an action directly in the district court to set aside the Industrial Commission order. Motions to dismiss were filed on behalf of defendants in error, asserting as grounds for dismissal that respondent had failed to exhaust his administrative remedies of review before the Commission and the district court therefore was without jurisdiction of the subject matter of the action.

The district court dismissed the action but granted respondent thirty days in which to file an amended complaint. Motions to dismiss the amended complaint upon the same grounds were filed and, after hearing, the court entered its order in the following language:

'After hearing the arguments of counsel, the Court concluded that the matter was not ready to be before this Court. The Court assumes jurisdiction for the purposes of remand only, and remands this matter to the Industrial Commission of the State of Colorado for such further proceedings as it deems appropriate.'

The basis for the court's order of remand does not appear in the record. However, it is noted that a complete record of the proceedings before the Commission was never lodged in the district court.

After remand, upon request of the claimant, the Commission issued its certified copy of award which was then docketed in the district court pursuant to C.R.S.1963, 81--5--7(3), for the purpose of reducing the award to judgment. Upon claimant's motion judgment was entered against respondent for $1,100...