Monks Excavating & Redi-Mix Cement v. Kopsa, REDI-MIX

• Decision Date: 18 December 1961
• Docket Number: REDI-MIX,No. 19827,19827
• Parties: MONKS EXCAVATING &CEMENT, and Fidelity and Casualty Company of New York, Plaintiffs in Error, v. Donald L. KOPSA and Industrial Commission of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 321

367 P.2d 321

148 Colo. 586

MONKS EXCAVATING & REDI-MIX CEMENT, and Fidelity and Casualty Company of New York, Plaintiffs in Error, v. Donald L. KOPSA and Industrial Commission of Colorado,

Defendants in Error.

No. 19827.

Supreme Court of Colorado, In Department.

Dec. 18, 1961.

Robert R. Montgomery, Denver, for plaintiffs in error.

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

DAY, Justice.

We will refer to the plaintiff in error Monks Excavating & Redi-Mix Cement as employer; to the defendant in error Kopsa as claimant, and to the Industrial Commission as the commission.

This writ of error is directed to a judgment of the district court affirming an award of the commission to claimant under the Workmen's Compensation Act, C.R.S. '53, 81-1-1 et seq.

The facts out of which this claim arose are not in dispute. The claimant was a machine operator for employer. On September 15, 1958, while guiding a pipe being pulled by a dragline, he was knocked to the ground. He immediately got to his feet, brushed himself off and continued to work. His employer, who was also his father-in-law, saw the incident, but when the employee got up and went right back to the heavy work he was doing as before and made no complaint and made no report as to any injury, the matter was given no further attention by either the employer or the employee. Employee continued to work on this construction job through the remainder of September and into October without interruption, and not once complained to his father-in-law of any back injury. In October he went to Kansas where he engaged in heavy work 'running a blade, a motor grader' (a rubbertired caterpillar) described by the claimant as heavy type construction work. At that time he began to suffer back aches and for the first time consulted a physician. The following July, when his symptoms became so aggravated that he was unable to do more work, he entered the Veterans Hospital for treatment.

It is undisputed that in ten months, up to his hospitalization in July, the employee never reported to his father-in-law that he had injured his back or was suffering from any back difficulty. When the employer-father-in-law visited claimant in Veterans Hospital he was informed for the first time that claimant was injured and that he claimed his injuries to have arisen out of the incident the previous September. On October 5, 1959--thirteen months after the accident--employee filed his claim for compensation with the Industrial Commission.

Employer contested the action pursuant to C.R.S. '53, 81-13-5, asserting that the claim was barred by failure of the employee to file his claim for compensation 'within six months after the injury' as provided therein. The employer challenges, both as error in law and as not supported by the record, the final award of the commission wherein is the conclusion 'that a reasonable excuse was produced for claimant's failure to file his claim within six months following the date of his industrial injury'. The commission failed to make a finding that 'the employer's rights have not been prejudiced thereby.'

The statute involved reads as follows:

'Notice of injury--time limit.--Notice of an injury, for which compensation and benefits are payable, shall be given by the employer to the commission within ten days after the injury, and in case of the death of any employee, resulting from any such injury, the employer shall give immediate notice thereof to said commission. If no such notice is given by the employer, as required by this chapter, such notice may be given by any person. Any notice required to be filed by an injured employee or, if deceased, by his dependents, may be made and filed by anyone on behalf of such claimant and shall be considered as done by such claimant if not specifically disclaimed or objected to by such claimant in writing filed with the commission within a reasonable time. Such notice shall be in writing and upon forms prescribed by the commission for that purpose and served upon the commission by delivering to, or by mailing by registered mail, two copies thereof, addressed to the commission at its office in Denver, Colorado. Upon receipt of such notice from a claimant the commission shall immediately mail one copy thereof to said employer, his agent or insurance carrier.

'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 in this chapter. The right to compensation and benefits, as provided by this chapter, shall be barred unless within six months after the injury, or within one year after death resulting therefrom, 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 where 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 supplied.)

Nowhere in the findings of fact by the commission, nor in the record, was there any showing that the employee 'established' an excuse for failure to file his claim for more than a year. Nor was there 'established' an excuse for claimant's failure to report the injury to his employer for a period of ten months. When asked by the referee as to claimant's reason for waiting so long to file his claim, claimant offered no excuse whatsoever, giving the following answer: 'Well, I really didn't think there was anything to it. I don't know. I thought it was just another back ache and decided to let it go, and when it got so bad I...