Newman v. McKinley Oil Field Service

• Decision Date: 10 December 1984
• Docket Number: No. 83SC165,83SC165
• Citation: 696 P.2d 238
• Parties: In the Matter of the Claim of Marvin E. NEWMAN, Petitioner, v. McKINLEY OIL FIELD SERVICE and Travelers Insurance Company, Respondents.
• Court: Colorado Supreme Court

Page 238

696 P.2d 238

In the Matter of the Claim of Marvin E. NEWMAN, Petitioner, v. McKINLEY OIL FIELD SERVICE and Travelers Insurance Company Respondents.

No. 83SC165.

Supreme Court of Colorado En Banc.

Dec. 10, 1984.

As Modified on Denial of Rehearing

Feb. 4, 1985.

Mellman, Thorn, P.C., Gerald N. Mellman, Denver, for petitioner.

Greengard, Blackman & Senter, Scott R. Cook, Lawrence D. Blackman, Denver, for respondents.

KIRSHBAUM, Justice.

Claimant, Marvin E. Newman, seeks review of a Colorado Court of Appeals order dismissing his petition for review of a final order of the Industrial Commission. We reverse.

In September of 1975, Newman injured his back while employed by McKinley Oil Field Service (McKinley). He filed a claim for workmen's compensation benefits with the Department of Labor in May of 1976, requesting compensation for temporary and permanent partial disability. McKinley and its insurer, Travelers Insurance Company (Travelers), entered appearances as respondents in the administrative proceeding.

Hearings were held before two hearing officers of the Department, and the record reflects that Newman, the Department and others explored numerous rehabilitation alternatives in connection with his injury. However, on August 24, 1981, a hearing officer entered an order dismissing Newman's claim for permanent partial disability on the ground that under section 8-51-110(3), 3 C.R.S. (1984 Supp.), Newman's conduct with respect to potential vocational rehabilitation programs "justif[ied] a finding that claimant has no permanent disability compensable under the Act." ¹ On August 24, 1982, the Commission entered a final order affirming the referee's dismissal of Newman's claim.

Within the applicable time limitation, ² Newman filed a petition for review of the Commission's final order in the Colorado Court of Appeals and served a copy of his petition on the Commission. The petition's caption lists McKinley and Travelers as respondents. Although the caption does not refer to the Commission, the first sentence of the petition states as follows:

COMES NOW the Claimant, Marvin E. Newman, ... and petitions this Honorable Court for review of the Industrial Commission's Order.

Newman also filed a designation of parties in the Court of Appeals on November 30, 1982, on a form containing the printed statement that the matter was an "Appeal from the Industrial Commission of the State of Colorado." The certificate of service on this form reflects that both the Commission and the Attorney General were served with copies of the petition for review. On December 15, 1982, the Attorney General filed an entry of appearance on behalf of the Commission with the Court of Appeals, and on the next day the Commission filed the record of its proceedings with the court. Newman subsequently filed his opening brief.

On March 9, 1983, McKinley and Travelers filed a "Motion for Dismissal of Appeal for Failure to Join an Indispensable Party." The motion alleges in pertinent part that both the Director and the Commission were indispensable parties to the appeal, that Newman had failed to bring such parties before the court, and that this failure deprived the Court of Appeals of jurisdiction to review the case. ³ The court, without stating any grounds for its decision, granted the motion by means of a notation thereon stating "dismissal granted."

In Matthews v. Industrial Commission, 44 Colo.App. 159, 609 P.2d 1127 (1980), the Court of Appeals determined that the Industrial Commission is an indispensable party to proceedings to review that Commission's final orders. ⁴ Newman does not challenge that conclusion. He does assert, however, that the Court of Appeals had jurisdiction to review the Commission's order because he complied with the requisite statutory procedures for commencing such appellate review and properly served the Commission. We agree with this argument.

Persons seeking appellate review of final orders of the Commission must comply with applicable statutory provisions defining the nature and extent of such review. C.A.R. 3.1; see Industrial Commission v. Plains Utility Company, 127 Colo. 506, 259 P.2d 282 (1953); Trujillo v. Industrial Commission, 31 Colo.App. 297, 501 P.2d 1344 (1972). Respondents assert that the appeal as filed was not "proper" because the Commission was not specifically designated a party in the caption of the petition for review. While the more prudent course of conduct would be to name the Commission as a party in the caption of the petition, we reject the argument that Newman's failure to do so here constitutes a jurisdictional defect.

At the time Newman sought review of the Commission's order, the method of obtaining appellate review of such decisions was prescribed primarily by sections 8-53-108 and -110, 3 C.R.S. (1973 & 1982 Supp.). ⁵ Section 8-53-108 provided in pertinent part that a dissatisfied person in interest could commence an action for appellate review in the Court of Appeals "against the director and the commission as defendants." Relying on this statutory language, respondents assert that Newman's failure to name the Commission in the caption of the petition for review is jurisdictionally fatal. However, section 8-53-108 does not prescribe the precise form to which a petition for review must conform. The phrase "as defendants" is descriptive only. The preposition "as" means "after the manner of," or "in the character, role, function, capacity, condition, or sense of." Webster's Third New International Dictionary (1976). In practice, parties adverse to the person initiating Court of Appeals review of Commission orders are termed "respondents," not "defendants," by that court. Thus, the Commission assumes the role of a "defendant" in the same sense that a party seeking appellate review of a Commission order assumes the posture of a plaintiff. Section 8-53-108 does not prescribe the means by which the Commission is to be made a party to an appeal of its orders; therefore, Newman's failure to state the Commission's name in the caption of the petition did not violate the terms of that statute.

At the time Newman filed his petition, section 8-53-110 contained the following pertinent language:

(1)(a)[A] copy of the petition ... shall be served upon the commission and each adverse party. The commission, within twenty days after the service of the petition, shall make return to said court ... which return shall be deemed its answer ... [and] shall constitute the judgment roll in such action....

(b) Such action [for appellate review] shall be commenced by such service of the petition upon the commission. The petition shall be filed with the court of appeals within ten days after such service. Such action shall be conducted in the manner prescribed by rule of the supreme court.

Failure to comply with statutory provisions regarding timely filing and proper service of petitions for review is jurisdictionally fatal. See Wallace v. Industrial Commission, 629 P.2d 1091 (Colo.App.1981). The basis of such rule is clear: until some document is presented to the Commission and to the Court of Appeals, no appellate process has begun, and the General Assembly has prescribed the time within which such process must be initiated.

Here, however, Newman fully complied with the requirements of timely serving a petition for review on the Commission and timely filing a copy thereof with the Court of Appeals. The petition's initial statement that Newman seeks review of the Commission's order placed respondents and the Commission on notice of the disputed matters, and respondents' motion to dismiss does not allege that...