W.C. No. 4-337-504Industrial Claim Appeals Office.
May 9, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Corchado (ALJ) which determined the claim is barred by the statute of limitations and, therefore, denied and dismissed the claim. We affirm.
The claimant was employed by the respondent-employer from 1983 to June 1997. The ALJ found that in 1994, the claimant began to feel increasing stress from her workload. In May the claimant filed a work-related injury report with the employer and began losing time from work. On May 10, 1999, the claimant filed an application for hearing which the ALJ treated as a workers’ compensation claim for mental impairment. However, the ALJ determined that the statute of limitations began running April 3, 1997, when Sandra Wilday Rex, (Rex) a Licensed Clinical Social Worker, informed the claimant that she was suffering from “stress related symptoms of the severity to warrant time off work.” Therefore, the ALJ determined that the May 10, 1999, claim was not timely filed. The ALJ further determined the claimant failed to prove a reasonable excuse for the failure to file the claim within two years and that the statute of limitations was tolled.
I.
On review the claimant first contends the ALJ erred as a matter of fact and law in finding the statute of limitations began to run on April 3, 1997. The claimant contends the statute of limitations began running no earlier than May 12, 1997, when she missed three shifts as a result of the alleged mental impairment. Consequently, the claimant argues the claim was timely filed on May 10, 1999. Under the particular circumstances presented here, we disagree.
Section 8-43-103(2), C.R.S. 2000, provides that the right to workers’ compensation benefits is barred unless a formal claim is filed within two years after the injury. The statute of limitations does not begin to run until the claimant, as a reasonable person, knows or should have known the “nature, seriousness and probable compensable character of his injury.” City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194
(1967). For purposes of the statute of limitations, a “compensable” injury is one which is disabling, and entitles the claimant to compensation in the form of disability benefits. City of Boulder v. Payne, supra; Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981). Therefore, to recognize the “probable compensable character” of an injury, the claimant must appreciate a causal relationship between the employment and the condition. The claimant must also know that the injury is disabling and may entitle her to disability benefits. Temporary disability benefits are payable if the injury causes the claimant to miss more than three shifts from work. Section 8-42-103(1)(a), C.R.S. 2000 City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640
(Colo.App. 1998) Grant v. Industrial Claim Appeals Office, 740 P.2d 530
(Colo.App. 1987).
The determination of when the claimant recognized the probable compensable character of the injury is a question of fact for resolution by the ALJ. Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The record contains substantial evidence that the claimant complained of psychological problems from work-related stress prior to April 1997. The claimant admitted that, on April 3, 1997, Rex, advised her to take time off work due to stress. (Tr. p. 105; Claimant’s hearing exhibit 11). Further, there is evidence that on April 8, 1997, Dr. Powers recommended the claimant follow through with Rex’s recommendations to take time off work. (Powers May 23, 1998). However, the claimant testified that she did not take time off in April because her workload was heavy and she was afraid of losing her job. (Tr. p. 105). Consequently, the claimant kept pushing herself to “go and go and go” until May 12, 1997, when she was no longer able to work due to emotional problems resulting from the job related stress. (Tr. pp. 86). The claimant then applied for short term disability benefits. (Claimant’s hearing exhibit 32).
Cumulatively, the record supports the ALJ’s determination that the claimant knew or reasonably should have known in April 1997 that her psychological symptoms were due to the employment, were disabling, and would have entitled her to temporary disability benefits had followed medical advice to take time off from work. Consequently, we may not disturb the ALJ’s determinations that the statute of limitations commenced running in April 1997, and the claim was filed more than two years later.
II.
Next, the claimant contends the ALJ erroneously failed to find the claimant had a reasonable excuse for her failure to file a claim within two years. The claimant contends the respondents mislead her in to believing that the claim was preserved without the filing of a written claim with the Division of Workers’ Compensation (Division).
As argued by the claimant, 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 burden of proof to establish a “reasonable excuse” rests with the claimant. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Generally a mistake of law is not a reasonable excuse for a party’s failure to assert a legal right. Jensen v. Jensen, 92 Colo. 169, 18 P.2d 1016 (1933). Consequently, the claimant’s lack of knowledge concerning her need to file a claim with the Division is insufficient to establish a reasonable excuse for her failure to file a notice of claim within two years of the injury. See Ramos v. Sears Roebuck Co., W.C. No. 4-156-827 (February 10, 1994). However, an exception exists where the claimant’s confusion is due to misrepresentations by the employer or insurer. 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).
As argued by the claimant, the record contains some evidence that the employer misled the claimant in to believing that once she filed a workers’ compensation claim with the employer, the employer would fil all other required claim forms. (Tr. p. 88). However, on June 26, 1998, the claimant’s current attorney entered his appearance as counsel of record and requested a copy of the Division’s file in this claim. Based upon this evidence the ALJ reasonably inferred that after June 1998 the claimant’s confusion due to the employer’s misrepresentation was no longer a reasonable excuse for the claimant’s failure to file a claim within the statutory time limit.
III.
Finally, we reject the claimant’s contention the ALJ erroneously determined the claimant failed to prove the statute of limitations was tolled. Section § 8-43-103(2) provides that:
“[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. 2000 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 shall, in writing, upon forms prescribed by the division for that purpose, report said occupational disease disability, permanently physically impairing injury, lost- time injury, or fatality to the division.” (Emphasis added).
Whether the claimant sustained her burden to prove the statute of limitations was tolled by the employer’s failure to comply with §8-43-101 is a question of fact for the resolution by the ALJ. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).
The record contains computer printouts which state the Division received the employer’s First Report of Injury on May 15, 1997. (Claimant’s hearing exhibits 21, 22). Based upon the computer printouts, the claimant contends the employer did not comply with 8-43-101 because the Employer’s First Report of Injury was filed “electronically” instead of in writing, upon forms prescribed by the Division. However, we are not persuaded the record compels that finding. To the contrary, the ALJ could, and did, interpret the computer printouts as showing that the employer filed a written report as required by § 8-43-101, and that the filing was permanently recorded by the computer entry. Therefore, the ALJ did not err in refusing to find that the statute of limitations was tolled.
The claimant’s remaining arguments have been considered and are not persuasive. Consequently, the claimant has failed to establish grounds which afford us a basis to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 13, 2000, 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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 9, 2001 to the following parties:
Dixie L. Born, 7252 S. Colorado Ct., Littleton, CO 80122
University of Denver Colorado Seminary, 2400 S. Gaylord, Denver, CO 80208
University of Denver Colorado Seminary, 2020 E. Evans Ave., Denver, CO 80210-4702
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Raeann Harrison, Pinnacol Assurance, 720 S. Colorado Blvd., P. O. Box 469015, Denver, CO 80246
Lisa Varriale, Esq., 600 17th St., #1600N, Denver, CO 80202
BY A. Pendroy