State Compensation Ins. Fund v. Industrial Commission of Colorado

• Decision Date: 27 September 1926
• Docket Number: 11624.
• Citation: 249 P. 653,80 Colo. 130
• Parties: STATE COMPENSATION INS. FUND v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

249 P. 653

80 Colo. 130

STATE COMPENSATION INS. FUND v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 11624.

Supreme Court of Colorado

September 27, 1926

Department 2.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Proceeding under the Workmen's Compensation Act by Lera A. Todd and others for the death of John E. Todd, her husband, in which the Commission awarded compensation against the State Compensation Insurance Fund. The Fund brought suit to set aside the award under Laws 1923, p. 746, § 18. Judgment was rendered against the Fund in district court, and it brings error.

Affirmed.

W. F. Mowry, of Denver, for plaintiff in error State Compensation Insurance Fund.

William L. Boatright, Atty. Gen., and Otto Friedrichs, Asst. Atty Gen., for the Industrial Commission.

Gordon & Gordon, of Lamar, for defendant in error Lera A. Todd.

DENISON J.

The commission awarded compensation to Lera A. Todd, widow, and to certain others, children, of John E. Todd, deceased against the State Compensation Insurance Fund.

The Fund, as it might under S. L. 1923, p. 746, § 18, brought suit in the district court to set aside the award, was there defeated, and brings error. The commission and the court were right.

The original finding and order of the referee denied compensation. The first point made by plaintiff in error is that, since there was no petition for review of this order, the action of the commission, sua sponte, in setting it aside, taking new evidence and ultimately awarding compensation, was beyond its powers, because of C. L. § 4471, or rather the amendment thereto (S. L. 1923, p. 757, § 6 [amending Laws 1919, p. 741, § 97]), which is as follows:

'Sec. 97. Any party in interest who is dissatisfied with the order entered by the referee may petition to review the same, and the referee may reopen said case, or may amend or modify said order, and such amended or modified order shall be a final award unless objection be made thereto by further petition for review. In case said referee does not amend or modify said order, he shall refer the entire case to the commission, and the commission shall thereupon review the entire record in said case, and, in its discretion, may take or order the taking of additional testimony, and shall make its findings of fact and enter its award thereon. The award of said commission shall be final unless a petition to review same shall be filed by an interested party. Every petition for review shall be in writing and shall specify in detail the particular errors and objections. Such petition must be filed within ten days after the entiry of any referee's order or award of the commission unless further time is granted by the referee or the commission within said ten days, and, unless so filed, said order or award shall be final. All parties in interest shall be given due notice of the entry of any referee's order or any award of the commission, and said period of ten days shall begin to run only after such notice, and the mailing of a copy of said order or award addressed to the last-known address of any party in interest shall be sufficient notice.'

If we take this section literally, we must say that the referee's order denying the compensation was final because no petition for review was filed within the ten days, but we are of the opinion that the meaning of the section is that no one can claim a right of review unless the petition is filed, and that it does not relate to acts of the commission on its own motion. Can it be said that when the commission knows its decision is wrong or seriously doubts whether it is right, it may not, before any one has acted on it, review its own work, take more evidence, and, if necessary, modify or change its decision? The question is settled by C. L. § 4484.

It is claimed that 'mistake' in section 4484 does not include a mistake of law, but we have held otherwise. Employers' Mutual Ins. Co. v. Ind. Com., 78 Colo. 501 242 P. 988. Our opinion is that said s...