dissenting:
I do not agree that the General Assembly’s action, either in 1986 or in 1989, was intended to change the long-standing rule that the public body charged with administering Colorado’s workers’ compensation program is required to act by a majority of its members. Hence, I respectfully dissent.
Before 1986, there existed the Colorado Industrial Commission, composed of three members. Section 8-1-102(1), C.R.S. The Industrial Commission was given a number of duties and responsibilities. Among other things, the authorizing statute provided that:
“[T]he commission has the duty and power to
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(f) Hear as an appellate board all appeals from any order, award, or decision of the director_” Section 8-1-107(1), C.R.S. (emphasis supplied).
As the majority notes, the Industrial Commission was replaced in 1986 by the Industrial Claim Appeals Office (Panel), which then consisted of “three industrial appeals examiners,” who are appointed “to serve on the industrial claim appeals panel.” Section 8-1-102(1), C.R.S. (1986 Repl. Vol. 3B) (emphasis supplied).
As was true of the Industrial Commission, however, it is the “industrial claim appeals panel [that] has the duty and the power to conduct administrative appellate review of any order entered” with respect to unemployment compensation or workers’ compensation claims. Section 8-1-102(2), C.R.S. (1986 Repl.Vol. 3B) (emphasis supplied). Nowhere in the statutes is any individual examiner given any such power.
As the majority also notes, the statute governing the Industrial Commission specifically provided that a “majority” of three commissioners would “constitute a quorum to transact business and exercise the powers conferred by law.” Section 8-1-102(2), C.R.S. And, no such specific injunction is contained within the statute that created the Panel.
For several reasons, however, there is little significance to be placed upon this omission.
First, the statutory requirement for majority action was placed in the original Industrial Commission Act, when it was adopted in 1915. Colo.Sess.Laws 1915, ch. 180, § 5 at 565. At that time, there was no general statute requiring that action be by a majority of the members of a “public body.” Such a statute, which is now codified as § 2-4-110, C.R.S. (1980 Repl.Vol. 8B), was not enacted until 1973. Colo.Sess. Laws 1973, ch. 406, § 135-1-110 at 1423.
If we assume that the General Assembly intended that this latter statute was to apply to all public bodies, including the Panel, there was no need for it to repeat a similar requirement when it created the Panel in 1986. And, nothing that was presented in the hearings upon the bill that resulted in the 1986 act is inconsistent with this conclusion.
However, even if this 1973 statute could be said to be not applicable to the Panel, it *395would mean, simply, that there was, until 1989, no statute setting forth the number of Panel members required to exercise the “duty and power” of appellate review that had been delegated to the Panel, itself. Under such circumstances, “[t]he almost universally accepted common law rule ... [is that] a majority of a quorum constituted of a simple majority of a collective body is empowered to act for the body.” Federal Trade Commission v. Flotill Products, Inc., 389 U.S. 179, 88 S.Ct. 401, 19 L.Ed.2d 398 (1967) (three of five members of commission must sit as quasi-judicial body, but only two of the three member quorum must concur). See Mountain States Telephone & Telegraph Co. v. People ex rel. Wilson, 68 Colo. 487, 190 P. 513 (1920) (majority of supreme court members are required to participate in a case, but only majority of those sitting need concur in decision).
Thus, whether § 2-4-110 or the common law is looked to, the result is the same. In either case, so long as the Panel consisted of three members, at least two (a majority) were required to participate in hearing appeals in both unemployment compensation and workers’ compensation cases.
I must emphasize that this record contains absolutely no evidence of the practice of the Panel, or the reason for such practice, between the date of its creation and the date that its membership was increased from three to four. Nevertheless, if we may take judicial notice of our own experience with the Panel, it may be said that the three-member Panel never acted, or attempted to act, by less than a majority of its entire membership during that time. During this period, at least two members of the Panel always participated in the Panel’s appellate review of any case.
This brings us, then, to the 1989 legislation, which authorized the Panel’s membership to be increased from three to a maximum of five. Section 8-1-102(1), C.R.S. (1990 Cum.Supp.). At the same time that this statute was adopted, § 8-74-110, C.R.S. (1990 Cum.Supp.), which is a part of the unemployment compensation statutes, was amended so as to provide that, when reviewing unemployment compensation claims, two appeals examiners can adopt a final order, except that, if they disagree, a third is required also to act.
This latter legislative amendment is notable for at least two reasons.
First, the fact that the General Assembly felt it necessary to adopt such a statute constitutes legislative recognition that, without its adoption, the Panel could act only upon the participation of a majority of its members. Indeed, if the General Assembly had not been of this view, there would have been no need to amend the unemployment compensation statutes to allow less than a majority of the appeals examiners to act upon unemployment compensation claims.
Second, the General Assembly did not amend the workers’ compensation statute to grant the Panel similar authority when acting on workers’ compensation appeals. Hence, since it took deliberative action to rescind the majority participation requirement for unemployment compensation claims, I find it difficult to believe that the General Assembly simply overlooked a necessary amendment to the workers’ compensation statute. Indeed, I am unwilling to attribute to this public body an intent to repeal a requirement that had been in existence for nearly 75 years without a clear expression of that intent by a majority of its members. Rather, I conclude that the General Assembly intended that the Panel would employ different procedures, depending upon whether it was acting to review an unemployment compensation claim or a workers’ compensation claim.
Certainly, the General Assembly has required differing procedures for the Panel in the past. See Clark v. Colorado State University, 762 P.2d 698 (Colo.App.1988) (APA standard of review applicable to Panel’s review of unemployment compensation appeals); May D & F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App.1988) (APA standard not applicable on appeal of workers’ compensation claims). Hence, there can be no presumption that it intended the same procedure to be used in this instance.
*396Finally, I agree with the majority that the legislative history makes clear that the reason for the 1989 amendment increasing the number of examiners was to allow the Panel to deal with unemployment compensation claims on a more expeditious basis. And, I also agree that the amendment to the unemployment compensation statute, allowing only two members to act upon such claims, was reasonably designed to achieve this purpose.
The 1989 amendment, however, contemplated a total of five, not four, examiners. On its face, therefore, it had the effect of authorizing two additional examiners and, at the same time, it authorized only two examiners to act on unemployment compensation claims. From the very terms of the amendment, without reference to any extrinsic materials, the intent seems clear to allow the other three examiners, who would continue to constitute a majority of the new five-member board, to continue to deal with workers’ compensation appeals.
Further, none of the testimony before the legislative committees upon the 1989 amendment, fairly read, can be said to be inconsistent with this conclusion. The testimony of the executive director before the House committee, referred to by the majority, was simply an explanation of how the Panel was then required to operate because there were then only two Panel members, a vacancy in that position having recently occurred. Likewise, Senator Tray-lor’s testimony before the Senate committee referred only to unemployment compensation appeals; he did not relate to the procedure that the Panel was to follow in workers’ compensation cases.
In short, I cannot agree that the 1989 amendment to a statute applicable only to unemployment compensation appeals can be read as amending the statute dealing with workers’ compensation claims. Hence, I would hold that, when considering appeals of the latter claims, a majority of the Panel members must participate. Since the record here demonstrates that a majority did not participate in the appeal under consideration, I would hold that the resulting order is void.
Because the Panel’s order of remand must be considered void, no valid order was entered by it within the sixty-day period required by statute. Under such circumstances, the ALJ’s order automatically became the order of the Panel. Section 8-43-301(11), C.R.S. (1990 Cum.Supp.). Therefore, I would not dismiss this petition. Rather, I would assert jurisdiction over the cause, but only to the extent, if at all, that petitioner seeks our review of the order of the ALJ.