Sanchez v. Straight Creek Constructors, 77-494
| Decision Date | 27 April 1978 |
| Docket Number | No. 77-494,77-494 |
| Citation | 41 Colo.App. 19,580 P.2d 827 |
| Parties | Thomas B. SANCHEZ, Petitioner, v. STRAIGHT CREEK CONSTRUCTORS, State Compensation Insurance Fund, the Industrial Commission of the State of Colorado, and Juereta P. Smith, Director of the Division of Labor, Respondents. . II |
| Court | Colorado Court of Appeals |
Sterling, Simon & Rubner, Paul D. Rubner, Steven M. Furman, Denver, for petitioner.
Fred B. Dudley, Richard G. Fisher, Jr., Denver, for respondents State Compensation Ins. Fund and Straight Creek Constructors.
J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John Kezer, Asst. Atty. Gen., Denver, for respondents Industrial Commission of the State of Colorado and Juereta P. Smith.
Petitioner, Thomas Sanchez, seeks review of that portion of an order of the Industrial Commission which terminated his temporary disability benefits. We conclude that we have no jurisdiction to review the order, and we therefore dismiss the petition.
On November 17, 1976, the Industrial Commission entered an "award" which approved an earlier referee's supplemental order awarding petitioner permanent partial disability and terminating his temporary disability entitlement. On the fifteenth day thereafter, December 2, 1970, Sanchez filed a petition to review that award in this court. He simultaneously filed a notification copy with the Commission. Sometime later, Sanchez became aware that 8-53-106, C.R.S.1973, required that the initial review of any award of the Commission must be made by the Commission itself. He thereupon sought permission from this court in late January, 1977, to withdraw his petition, which prompted respondent to file a motion to dismiss the petition for lack of jurisdiction. The respondent's motion was denied by this court.
On February 28, 1977, the petitioner moved the Industrial Commission to permit him to amend the caption of his December 2, 1976 petition to designate it as a petition for reconsideration of the award by the Industrial Commission. The Industrial Commission granted this motion, and on May 16, 1977, the Commission purported to enter a final order, approving its November 17, 1976 determination. Petitioner then filed with this court a second petition directed to the May 16 order. Again, the respondent moved this court to dismiss petitioner's appeal for lack of jurisdiction, and again, such motion was denied.
Now, in its appellate brief, the respondent argues for the third time that when fifteen days passed without a petition for reconsideration of the November 17, 1976 order, both the Industrial Commission and this court were without jurisdiction to conduct a review. Respondent asserts that jurisdictional challenges may be neither waived nor lost, and that our earlier summary dismissals of these challenges do not preclude us from, at this time, scrutinizing our jurisdiction to determine this appeal.
Sanchez asserts, without supporting citation, that our earlier dealings relative to this issue are "res judicata." He alternatively argues that even if we again consider the jurisdictional issues, the proceedings for review must be allowed to proceed because he has "substantially" complied with the fifteen day requirement of 8-53-106, C.R.S.1973.
Subject Matter Jurisdiction "Res Judicata?"
Although we have previously denied motions by the respondent to dismiss this petition for lack of jurisdiction, we hold that we may again determine whether jurisdiction of the subject matter lies in this court. Subject matter jurisdiction relates to the power or authority of the court to deal with a particular case it either exists or it does not. The parties cannot confer subject matter jurisdiction upon the court, nor may the court confer it upon itself. See Thorne v. Ornauer, 6 Colo. 39 (1881). Thus, the plaintiff's notion that a "law of the case" principle binds us, because of our earlier rulings on the jurisdictional aspects of this case, is erroneous.
As to the petitioner's assertion that he substantially complied with the statutory review procedures, we disagree.
Section 8-53-106, C.R.S.1973, provides that any part...
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