University of Denver v. Industrial Com'n of Colo.

• Decision Date: 09 February 1959
• Docket Number: No. 18810,18810
• Citation: 138 Colo. 505,335 P.2d 292
• Parties: UNIVERSITY OF DENVER, a Corporation, and London Guarantee & Accident Company, Ltd., a Corporation, Plaintiffs in Erorr, v. INDUSTRIAL COMMISSION OF COLORADO and Ernest E. Nemeth, Defendants in Error.
• Court: Colorado Supreme Court

Page 292

335 P.2d 292

138 Colo. 505

UNIVERSITY OF DENVER, a Corporation, and London Guarantee &

Accident Company, Ltd., a Corporation, Plaintiffs in Erorr, v. INDUSTRIAL COMMISSION OF COLORADO and Ernest E. Nemeth,

Defendants in Error.

No. 18810.

Supreme Court of Colorado, En Banc.

Feb. 9, 1959.

Sheldon & Nordmark, Denver, for plaintiffs in error.

Robert Swanson, Denver, for defendant in error Ernest E. Nemeth.

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

SUTTON, Justice.

This is a Workmen's Compensation case arising under C.R.S. '53, 81-14-19, involving a dispute as to the period within which a cliam may be reopened after an award.

It is a case of first impression in Colorado. The plaintiffs in error will be referred to as defendants as they appeared below; the Industrial Commission will be referred to as the Commission and Ernest E. Nemeth as claimant.

In University of Denver v. Nemeth, 1953, 127 Colo. 385, 257 P.2d 423, it was held that this claimant, who was injured while playing football for the University of Denver, was covered by the Workmen's Compensation statutes, his employment in other part time work for the University being dependent upon his participation in such athletics.

Claimant's original award was dated July 20, 1953. The then finding was that he was 15% permanently disabled with maximum improvement as of January 1, 1952. Weekly payments of $11.87 were ordered for temporary and permanent partial disability until $3,656.22 was paid with interest on all accrued compensation. Claimant was also awarded medical, surgical and hospital expenses. Payments then due were paid on or about July 21, 1953, and weekly payments made thereafter until October 26, 1954, at which time on claimant's petition the Commission ordered a final award of a lump sum with the employer neither approving nor disapproving the action. This lump sum was paid by defendants who deducted the statutory four percent discount. Claimant exeucted a receipt for the final payment which read in pertinent part: 'in full payment under * * * Award of Commission * * * for all injuries or disablement * * * received by me on or about April 17, 1950.' The Commission approved the receipt by its stamp thereon which included as part thereof the wording: 'Subject to Any Future Claim for Disability as Provided by Law'.

On December 12, 1957, claimant petitioned the Commission to reopen his case on the sole ground of change in his condition. The Commission considered the request and on its own motion ordered the case reopened on January 10, 1958. On review the District Court affirmed. Defendants are here by writ of error contending that under the statute in question the Commission lacked jurisdiction to order a reopening.

Sole Question to be Determined:

Where a claimant under the Workmen's Compensation Statute has been awarded compensation and has received a lump sum in settlement and executed a receipt therefor acknowledging it to be received in full payment of the award for all injuries or disablement, does the statutory period of time under C.R.S. '53, 81-14-19 relating to the time within which the Commission may reopen the case due to a 'change in condition' begin to run from the date of the payment or from the date when periodic payments would have terminated if such payments had been made in monthly installments as originally ordered?

The correct answer to this question depends upon an interpretation and construction of provisions of the Workmen's Compensation Act involved.

The statutory wording reads:

'Upon its own motion on the ground of error, mistake or a change in condition, the commission * * * at any time within two years after the date last payment becomes due and payable or within six years from the date of accident, whichever is longer, in cases where compensation has been paid * * * may review any award and on such review, may make an award ending, diminishing, maintaining, or increasing compensation previously awarded * * *. No such review shall effect such award as regards any moneys already paid.' C.R.S. '53, 81-14-19.

Before discussing our view of the statute as it relates to the question at hand, we point out that the statute grants the exclusive right to reopen to the Commission and a claimant's petition is merely a means of calling the attention of the Commission to the fact such action should be taken.

Under the facts here presented the order to reopen was made later than 'six years from the date of the accident' so claimant's rights must be determined by what the legislature meant by the statutory words 'at any time within two years after the date last payment becomes due and payable.' The words 'due and payable' present a slight ambiguity as here used, because the legislature has not stated whether it applies to commuted payments or to periodic payments or to a combination of such payments as occurred here. It is well...