W.C. No. 4-286-998Industrial Claim Appeals Office.
June 20, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wheelock (ALJ). The respondents contend that the ALJ erred in finding that the claim is not barred by the statute of limitations. We disagree, and therefore affirm the ALJ’s order.
In February 1996 the claimant filed a claim for workers’ compensation benefits and alleged bilateral carpal tunnel syndrome from the repetitive activities of her employment at Deluxe/Current Inc. (Current). The respondents filed an Employers’ First Report of Injury with the Division of Workers’ Compensation (Division) on October 1, 1996. The respondents also filed a Notice of Contest.
The ALJ found that the claimant suffered a compensable injury in November 1993 and awarded medical benefits. The ALJ also found that the two-year statute of limitations was tolled by the respondents’ failure to report the claimant’s injury to the Division until October 1996. Therefore, the ALJ determined that the claimant’s February 1996 claim for compensation was not barred by the statute of limitations currently codified at § 8-43-103(2), C.R.S. (1996 Cum. Supp.).
Section 8-43-103(2) states:
“[T]he right to compensation and benefits provided by said articles shall be barred unless, within two years after the injury or after death resulting therefrom, a notice claiming compensation is filed with the division.”
However, § 8-43-103(2) also provides:
“[I]n all cases in which the employer has been given notice of an injury and fails, neglects or refuses to report said injury to the division as required by the provisions of said articles, this statute of limitations shall not begin to run against the claimant of the injured employee . . . until the required report has been filed with the division.”
The employer’s duty to “report said injury” to the division refers to the employer’s statutory duties under § 8-43-101 C.R.S. (1996 Cum. Supp.). Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987). Section 8-43-101 requires that “within ten days after notice or knowledge that an employee has contracted an occupational disease, or the occurrence of a permanently physically impairing injury, or lost-time injury to an employee,” the employer must report the injury to the Division. An employer is deemed to have “notice” of an injury when the employer has “some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.” Jones v. Adolph Coors Co. 689 P.2d 681, 684 (Colo.App. 1984).
Here, there is no finding or assertion that the claimant suffered an “accidental injury.” See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Rather, the ALJ’s findings of fact reflect her determination that the claimant suffered a compensable injury in the nature of an occupational disease. Section 8-40-201(14), C.R.S. (1996 Cum. Supp.); CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982 (term “injury” encompasses both accidental injuries and occupational diseases). The ALJ found that during “the period leading up to November 23, 1993, the claimant developed increasing pain” in her left hand, left wrist, left arm and shoulder from the repetitive activities required of her employment (Findings of Fact 2, 3).
Furthermore, the ALJ’s findings reflect her determination that the respondents had notice in November 1993 that the claimant contracted an occupational disease, and thus, were required to report the injury to the Division. This true because in a claim based upon an occupational disease, the date of injury is the date the claimant suffers the “onset of disability.” The “onset of disability” occurs when the injury restricts the claimant to modified employment duties. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991); Jefferson County Schools v. Headrick, 734 P.2d 659 (Colo.App. 1986) (onset of disability when worker unable to perform job duties effectively or properly).
Here, the ALJ found that the employer referred the claimant to Dr. Brady for treatment of her upper extremity problem. Dr. Brady issued a report dated November 29, 1993, in which he restricted the claimant from repetitive movement of the left upper extremity and precluded the claimant from working overtime. Furthermore, the ALJ also found that the employer provided the claimant with modified work in accordance with Dr. Brady’s recommendations. (Finding of Fact 3).
We also note the claimant’s testimony that as of November 1993 she was subject to “mandatory-overtime” at Current. She stated that she normally worked eight hours a day Monday through Friday, and was required to work at least three more hours during the work week and four to eight hours on Saturday. (Tr. p. 13). Consequently, the record contains substantial evidence to support the ALJ’s determination that the respondents had sufficient information to cause a reasonably conscientious manager to believe that the claimant suffered a “lost time injury” which they failed to report to the Division until October 1996. See §8-42-103(1)(a), 8-42-105(1), C.R.S. (1996 Cum. Supp.); Grant v. Industrial Claim Appeals Office, supra, (a “lost time injury” means an injury which has caused the claimant to lose more than three shift or three calendar days form work).
Therefore, the record supports the ALJ’s determination that the statute of limitations was tolled. Consequently, the ALJ did not err in concluding that the claimant’s February 1996 claim for compensation was not barred by the statute of limitations.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 22, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed June 20, 1997 to the following parties:
Mary E. Gordon, 412 Prairie Rd., Colorado Springs, CO 80909
Mari Beth Utke, Deluxe Corporation, P.O. Box 64399, St. Paul, MN 55164-0399
Debra Shoemaker, Travelers/Aetna Ins. Co., P.O. Box 173762, Denver, CO 80217-5980
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, Ste. 600, Denver, CO 80202 (For the Respondents)
James M. Anderson, Esq., 559 E. Pikes Peak Ave., Ste. 212, Colorado Springs, CO 80903 (For the Claimant)
By: _______________________________