Industrial Commission v. Cutshall
| Decision Date | 20 November 1967 |
| Docket Number | No. 22797,22797 |
| Citation | 433 P.2d 765,164 Colo. 240 |
| Parties | INDUSTRIAL COMMISSION of Colorado, Forry Construction Company, and State Compensation Insurance Fund, Plaintiffs in Error, v. Duane Douglas CUTSHALL, Defendant in Error. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., Denver, for plaintiffs in error.
Sidney H. Tellis, Denver, for defendant in error.
This is an action brought by writ of error to review a judgment of the District Court of the City and County of Denver reversing an order of the Industrial Commission of Colorado. The defendant in error was the plaintiff in the court below. The plaintiffs in error were defendants below.
The plaintiff in error, Industrial Commission of Colorado, will be referred to as the Commission; plaintiff in error, Forry Construction Company, will be referred to as Employer; plaintiff in error, State Compensation Insurance Fund, will be referred to as Fund; defendant in error, Duane Douglas Cutshall, will be referred to as Cutshall.
Cutshall was employed by Forry as a brick mason. While laying brick in the course of his employment on June 26, 1964, he sustained an injury and subsequently filed his claim with the Commission.
A hearing was held before a referee who determined that Cutshall was injured in an accident arising out of and in the course of his employment. At this hearing and at all proceedings thereafter, Cutshall was represented by counsel. Application for review of this order by the Commission was made by the Fund and the Employer.
The Commission thereupon entered an 'award' setting aside the referee's order and dismissed the claim. Various petitions for review were filed, and determinations made by the Commission, which resulted in a final order of the Commission denying compensation. No review of this order was ever sought in the district court.
Some ten months later this Court announced two decisions (Industrial Comm. v. Milka, 159 Colo. 114, 410 P.2d 181, and Plummer v. State Compensation Ins. Fund, 159 Colo. 122, 410 P.2d 185) which led Cutshall to believe that the Commission had decided his case erroneously as a matter of law. Shortly thereafter Cutshall filed a petition requesting the Commission to reopen his case under C.R.S. 1963, 81--14--19, which provides:
'Commission May review on own motion--notice.--Upon its own motion on the ground of error, mistake or a change in condition, the commission * * * May review any award and on such review, May make an award ending, diminishing, maintaining, or increasing compensation previously awarded * * *.' (Emphasis added).
The Commission refused to reopen the case and Cutshall thereupon filed a complaint in the district court alleging that the Commission had abused its discretion in refusing to reopen the case. The trial court, after hearing, set aside the order of the Commission and directed the Commission to adopt the original award of the referee finding that an accident had occurred. We reverse.
C.R.S. 1963, 81--14--7 and 81--14--8 provide the machinery by which one may attack a final order of the Industrial Commission in a Workmen's Compensation case. Those sections provide that any action to set aside any finding, order, or award of the Commission must be brought within 20 days after the final finding, order or award entered by the Commission. By his failure to attack the award denying him compensation within 20 days, Cutshall lost his right to review and the order of the Commission became final for all purposes, unless reopened by the Commission on its own motion. Industrial Comm. v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282; Gadbois v. Allan, 105 Colo. 19, 94 P.2d 688.
Having failed to pursue the...
To continue reading
Request your trial
-
Travelers Ins. Co. v. Industrial Com'n of State of Colo.
...646 P.2d 399 ... The TRAVELERS INSURANCE COMPANY, Petitioner, ... INDUSTRIAL COMMISSION OF the STATE OF COLORADO; Director, ... Department of Labor and Employment, Division of Labor, State ... of Colorado, and Claimants in the Matter of ... This court will interfere with that determination only if fraud or abuse of discretion is shown. Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967) ... The record in this case does not disclose any fraud or abuse of discretion. The referee, ... ...
-
Industrial Commission v. Sheard
... ... 30 days the plaintiffs lost their right of appeal. In Workmen's compensation cases we have held that the failure to seek review within the time provided by statute is fatal. Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 795 and cases therein cited. We can see no distinction in the application of this rule under the Labor Peace Act and are convinced that we must follow the authority of the opinions under Workmen's Compensation Act ... It has been argued that, since a ... ...
-
Berg v. Ind. Claim Appeals off. of Colorado
...128 P.3d 270 ... Randy BERG, Petitioner, ... INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, United Parcel Services, and Liberty Mutual Group, ... See Indus. Comm'n v. Cutshall, 164 Colo. 240, 433 P.2d 765 (1967)(claimant was not entitled to have award reopened as a matter of ... ...
-
Industrial Commission v. Seastone, 23330
... ... Industrial Commission v. Cutshall, Colo., 433 P.2d 765; Bowlus v. Industrial Commission, 152 Colo. 535, 383 P.2d 789; Skinner v. Industrial Commission, 152 Colo. 97, 381 P.2d 253; University of Denver v. Johnston, 151 Colo. 465, 378 P.2d 830; Industrial Commission of Colorado v. Klaczkowski, 146 Colo. 11, 360 P.2d 104 ... ...