Butkovich v. Industrial Commission

723 P.2d 1306, 1986 Colo. LEXIS 601
CourtSupreme Court of Colorado
DecidedAugust 25, 1986
DocketNos. 86SC43, 86SC99
StatusPublished
Cited by2 cases

This text of 723 P.2d 1306 (Butkovich v. Industrial Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butkovich v. Industrial Commission, 723 P.2d 1306, 1986 Colo. LEXIS 601 (Colo. 1986).

Opinion

VOLLACK, Justice.

We granted certiorari in these two consolidated cases to review the question of whether the mailing of a petition for review of a workers’ compensation decision entered by the Industrial Commission to the Attorney General is sufficient to constitute proper service on the Industrial Commission. The court of appeals determined such service was not sufficient and dismissed the petitions based on lack of jurisdiction. We reverse and remand to the court of appeals to address the merits of the appeals.

In Dependents of Butkovich v. T.L. Printz Construction, 716 P.2d 158 (Colo.App.1986), the Industrial Commission affirmed an order of the hearing officer on July 5, 1985. The Industrial Commission’s final order gave notice that the decision was final unless a petition for review was filed with the court of appeals “within twenty days after the date the decision was mailed, with service upon the Commission and other interested parties of a copy thereof, pursuant to Colorado Revised Statutes, sections 8-53-111(8) and 8-53-119 ... and the Colorado Appellate Rules of Court.” The petitioners filed their petition for review with the court of appeals on July 23, 1985. Petitioners mailed a copy of the petition for review to the Attorney General’s office on July 22, 1985, but did not mail a copy to the Industrial Commission. The court of appeals granted the Industrial Commission’s motion to dismiss on the basis that failure to comply with the procedural requirements by serving the Industrial Commission itself deprived the court of jurisdiction to review the matter.

In Fleshman v. Industrial Commission, No. 85CA1654, the court of appeals entered an order of dismissal of a petition for review on January 7, 1986, citing Butkovich for authority that service upon the Attorney General’s office does not constitute service upon the Industrial Commission. Petitioner was seeking review of a decision of the Industrial Commission which had been mailed on November 8, 1985. On November 27, 1985, petitioner served a copy of the petition for review on the Attorney General, but did not serve the Industrial Commission. The petition for review was filed with the court of appeals on November 29, 1985. Petitioner subsequently served the Industrial Commission on December 13, 1985, but only after the Industrial Commission through the office of the Attorney General filed its motion to dismiss the petition for review, which the court of appeals thereafter granted.

Appeals from orders and awards of the Industrial Commission are governed by C.A.R. 3.1. It provides that appeals “shall be in the manner and within the time prescribed by statute.” The procedural requirements for obtaining administrative or appellate review of the Industrial Commission’s orders are mandatory and jurisdictional. Washburn v. Industrial Commission, 153 Colo. 500, 386 P.2d 975 (1963); Hildreth v. Director of Division of Labor, 30 Colo.App. 415, 497 P.2d 350 (1972). Failure to comply with statutory provisions regarding timely filing and proper service of petitions for review is jurisdictionally fatal. Newman v. McKinley Oil Field Service, 696 P.2d 238 (Colo.1984).

At the time the petitioners herein sought review of the Industrial Commission’s orders, the method of obtaining appellate review was prescribed primarily by sections 8-53-111 and -119, 3 C.R.S. (1985 Supp.). Section 8-53-111(8) provides that any party dissatisfied with the Industrial Commission’s order shall have twenty days after [1308]*1308the date of the certificate of mailing of such order to file an appeal with the court of appeals. The appeal is commenced by service of a copy of the petition upon the Industrial Commission and filing the same with the court of appeals. § 8-53-119(3), 3 C.R.S. (1985 Supp.). This statute further provides that following the filing of a petition for review in the court of appeals, the action shall be conducted in the manner prescribed by the Colorado Appellate Rules.

The ambiguity in this statute which has brought this issue before us is whether service of the petition upon the Industrial Commission must be made to the Commission itself, or whether service may be made by serving the Attorney General’s office, which normally represents the Commission in such matters. The statute is silent as to whether one method of service or the other is required.

We note that section 8-53-119(3) makes reference to the Colorado Appellate Rules. C.A.R. 25(b) requires that service on a party represented by counsel be made on counsel. The court of appeals concluded C.A.R. 3.1 precludes the application of C.A.R. 25 because proper service is predicated upon the applicable statute, not the appellate rules. However, the applicable statute then refers to the Colorado Appellate Rules. It is apparent that uncertainty exists as to what action must be taken by a person who wishes to appeal a final order of the Industrial Commission in a workers’ compensation case.

The workers’ compensation statutes, which went into effect July 1, 1983, do not specifically set forth the required manner or method of service. While the statutes are silent, reference to the appellate rules provides guidance as to how service should be effectuated. It is reasonable to refer to the rules when the statute is silent, and the rules contain provisions for service. Moreover, the notice contained in the final order of the Industrial Commission also refers to the Colorado Appellate Rules.

In Scofield v. Industrial Commission, 697 P.2d 815 (Colo.App.1985), an unemployment compensation case, the Industrial Commission filed a motion to dismiss a review action because the claimant served the Attorney General, but not the Commission. The court of appeals allowed the claimant to re-serve the Commission based upon the fact that the applicable statute, section 8-74-107(2), 3 C.R.S. (1984 Supp.), had been recently amended, and because the Commission’s notice of final order was misleading. The court reasoned that in order for the Commission’s final order to constitute adequate notice of the claimant’s right to review, it should not be misleading in any material aspect. Scofield, 697 P.2d at 817. Here, because the final order refers to the appellate rules, as does section 8-53-119(3), the notice can be viewed as misleading, or at least ambiguous.

The purpose for service required by the statute is to notify the Industrial Commission that its final order is being appealed and to allow the record to be sent to the court of appeals. While a claimant must strictly comply with the procedures involved when seeking to avail himself of a statutory right of review, when an ambiguity exists the right to appeal should not be defeated lightly, and the ambiguity should be interpreted in favor of the claimant. Schenk v. Industrial Commission, 40 Colo.App. 350, 579 P.2d 1171 (1978).

In Lowery v. Industrial Commission, 666 P.2d 562 (Colo.1983), we addressed a similar set of facts in an unemployment compensation setting.

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Bluebook (online)
723 P.2d 1306, 1986 Colo. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butkovich-v-industrial-commission-colo-1986.