W.C. No. 4-360-847Industrial Claim Appeals Office.
May 4, 1999.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which determined the claim is barred by the statute of limitations, and therefore, the ALJ denied and dismissed the claim for workers’ compensation benefits. We affirm.
Section 8-43-103(2), C.R.S. 1998, provides that the right to workers’ compensation is barred unless a formal claim is filed within two years of the injury. However, § 8-43-103(2) states that the two year limitation period does not apply if:
“it is established to the satisfaction of the director within three years after the injury or death that a reasonable excuse exists for the failure to file such notice claiming compensation and if the employer’s rights have not been prejudiced thereby.”
The claimant began working for the employer on May 1, 1995. The claimant testified that he suffered work-related injuries to his back and leg May 12, 1995. A formal claim for workers’ compensation was filed less than three years but more than two years after the date of the alleged injury.
The ALJ determined that the claimant failed to establish a “reasonable excuse” for failing to file a formal claim within two years of the date of the injury. The ALJ also determined that the employer was prejudiced by the delay. Therefore, the ALJ determined the claim is barred under § 8-43-103(2).
On review the claimant contends that the ALJ disregarded the evidence and the applicable law in finding that he failed to establish a reasonable excuse for the delayed claim. The claimant contends that he did not file a claim within two years of the injury because the employer led him to believe that his right to compensation was barred if the injury was not reported within four days. Specifically, the claimant contends that during his employee orientation, the employer advised him that the failure to report an injury within 4 days “could seriously affect his future claim.” The claimant also contends that the employer posted legal notices which required all injuries to be reported within four days. The claimant argues that even though penalties may be imposed, a claim is not “seriously affected” by the failure timely to report the injury, and therefore, the claimant contends the employer erroneously misled him concerning the law.
The burden of proof to establish a “reasonable excuse” rests with the claimant. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). However, not all reasons for the late filing of a claim are sufficient to sustain the claimant’s burden of proof Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737
(1970). A “reasonable excuse” is one which is “legally justifiable.” Armour Co. v. Industrial Commission, 149 Colo. 251, 368 P.2d 798 (Colo. 1962); Morgan Drive Away, Inc. v. Industrial Claim Appeals Office (Colo.App. No. 95CA0047, May 18, 1995) (not selected for publication) (respondents’ representation to claimant that he would lose his disability benefits if he pursued a workers’ compensation claim was reasonable excuse).
The determination of whether a claimant has sustained his burden of proof is a matter within the discretion of the ALJ Industrial Commission v. Canfield, supra, and the ALJ’s determination is binding in the absence of a clear abuse of discretion. Industrial Commission v. Canfield, supra; State Compensation Insurance Fund v. Foulds, 167 Colo. 123, 445 P.2d 716
(1968). An ALJ abuses his discretion if his determination “exceeds the bounds of reason,” as where the ALJ’s determination is not supported by the record or the applicable law. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
However, the ALJ is not held to a crystalline standard in articulating the basis for his order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Further, the ALJ is not required explicitly to discuss particular evidence or theories before rejecting them as unpersuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966); Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo.App. 1988).
The claimant’s arguments notwithstanding, we have no difficulty ascertaining the basis for the ALJ’s order, and thus, the ALJ’s findings are sufficient to permit appellate review. The ALJ expressly recognized the claimant’s assertion that he delayed filing the claim because he was under the impression that the claim was barred if not reported within four days. (Finding of Fact 13). However, the ALJ was unpersuaded that the employer misled the claimant about filing a claim. We conclude that the ALJ’s determination does not exceed the bounds of reason.
A mistake of law is not a reasonable excuse for a party’s failure to assert a legal right. See 2B Larson, The Law of Workmen’s Compensation § 78.47 (1994); Jensen v. Jensen, 92 Colo. 169, 18 P.2d 1016 (1933). Consequently, in a series of cases we have concluded that the claimant’s lack of knowledge concerning his legal rights, without more, does not constitute a legally justified excuse for failing timely to file a notice of a workers’ compensation claim. Morford v. Fresh Express, W.C. No. 4-209-032
(September 29, 1995); Ramos v. Sears Roebuck Co., W.C. No. 4-156-827 (February 10, 1994).
However, where the claimant’s confusion about the law is due to misrepresentations by the employer or insurer, the ALJ may find that the claimant’s mistake of law is sufficient to establish a reasonable excuse for the delay in filing a claim. City and Count of Denver v. Phillips, 166 Colo. 312, 443 P.2d 379 (Colo. 1968); Colorado Fuel Iron Corp. v. Industrial Commission, 129 Colo. 287, 269 P.2d 696 (1954); Prager v. Lakeridge Theater, 483 P.2d 408 (Colo.App. 1971) (not selected for publication).
Section 8-43-102(1)(b), C.R.S. 1998 requires the employer to display a notice which reads:
“WARNING
IF INJURED ON THE JOB, WRITTEN NOTICE MUST BE GIVEN TO YOUR EMPLOYER WITHIN FOUR WORKING DAYS OF THE ACCIDENT, PURSUANT TO SECTION 8-43-102(1), C.R.S.”
Further, § 8-43-102(1)(a), C.R.S. 1998, provides that every employee who sustains a work-related injury shall notify the employer “in writing of the injury within four days of the occurrence of the injury.” The statute also provides that if the claimant fails timely to report the injury the claimant “may lose up to one day’s compensation for each day’s failure to so report.” Accordingly, evidence the employer advised the claimant that all work-related injuries must be reported within four days, is not a misrepresentation of the law. (Tr. pp. 18, 84).
Furthermore, in the context of § 8-43-102(1)(a), the term “compensation” includes temporary disability benefits. See Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995). The right to receive temporary disability benefits for wages lost as a result of the industrial injury is a significant component of the benefits available under the Workers’ Compensation Act. Therefore, insofar as the employer advised the claimant that failure timely to report the injury “could seriously affect” a claim, this evidence does not compel the conclusion that the employer misrepresented the law.
Under these circumstances, the ALJ could reasonably infer that the employer was not culpable for the claimant’s misunderstanding concerning the time for filing a claim, and did not mislead the claimant that failure to report an injury within four days could seriously affect his claim. Consequently, the claimant’s confusion does not constitute a legally sufficient excuse to avoid the two year statute of limitations. Therefore, the ALJ did not err in finding that the claim is barred.
In view of our conclusion it is immaterial whether the ALJ erred in finding that the respondents’ were prejudiced by the delay. Consequently, we do not consider the claimant’s contention that the ALJ erroneously erred in requiring him to prove that the respondents were not prejudiced by the delay.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 30, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed May 4, 1999
to the following parties:
Paul D. Bailey, Maybel Bailey, P.O. Box 1588, Sterling, CO 80751
Forsythe Downs Rides, Inc. d/b/a Wisdom Industries, P. O. Box 5000, Sterling, CO 80751-0460
Wausau Insurance Companies, Attn: Angie Abts, P. O. Box 419157, Kansas City, MO 64141-6157
Chad P. Hemmat, Esq., 26 W. Dry Creek Circle, #575, Littleton, CO 80120 (For Claimant)
Harry A. King, Jr., Esq., 679 Grant St., Denver, CO 80203 (For Respondents)
BY: AP