W.C. No. 4-725-046.Industrial Claim Appeals Office.
April 17, 2008.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Cain (ALJ) dated December 11, 2007, that determined that the claimant sustained a compensable injury and that ordered the respondent to pay medical mileage expenses. We affirm.
A hearing was held on the issues of whether the claimant sustained a compensable injury in September 2002, whether the claim for the injury was barred by the statute of limitations, and whether the claim was precluded by the equitable doctrine of claim preclusion. Following the hearing the ALJ entered factual findings that for the purposes of this order may be summarized as follows. On February 17, 2006, the claimant sustained a compensable injury to his low back while working as a baggage handler. The present claim, however, involves an alleged injury sustained in December 2002, while the claimant was performing baggage handling duties. The claimant had previously injured his low back in 1992 and been placed at maximum medical improvement with no permanent impairment in 1993. The claimant experienced back symptoms in 1997, but did not miss any time from work. In July 2001 he injured his back again and was placed at maximum medical improvement in September, when he returned to work without restrictions and without impairment. After the 2001 back injury the claimant occasionally experienced low back pain and occasionally missed work. On September 16, 2002, the claimant injured his back lifting a box at work. He was seen in the emergency room on September 22, 2002, and placed on work restrictions. A lumbar MRI was performed in October, which revealed congenital lumbar spinal stenosis with mild disc and facet deterioration and bulges at several levels of the spine. The claimant
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returned to his position as a baggage handler and continued to do that job until March 2003. The ALJ credited the claimant’s testimony that following the 2002 injury he experienced “significant” back pain two or three times each month, and that he missed some work on account of the pain.
The claimant injured his back again in September 2004, and the respondent admitted liability and paid temporary total disability benefits. The claimant reached maximum medical improvement on November 11, 2004, with no permanent impairment. The claimant returned to work as a baggage handler and continued to perform that work until February 2006, when he was injured again. After the claimant’s 2006 injury his treating physician, Dr. Kawasaki, placed him at maximum medical improvement on September 5, 2006, with ten percent impairment of the low back. In January 2007 Dr. Janssen performed a Division-sponsored independent medical examination (DIME) and reported that the claimant had sustained permanent impairment equal to 16 percent of the whole person, without apportionment. The respondent sought to overcome that rating and, in doing so, presented the testimony of Dr. Brodie, who stated that part of the DIME physician’s impairment rating should be apportioned to the 2002 injury. In an order dated July 8, 2007, the ALJ determined that the DIME report had been overcome and that the rating should have been apportioned.
On May 30, 2007, the claimant filed a claim for compensation in connection with the September 2002 injury. The ALJ found that the claimant first recognized the seriousness of the 2002 injury when Dr. Brodie testified in May 2007 that the injury caused permanent impairment. The ALJ also found that the claimant’s lost time from work did not “alert” him to the seriousness of the injury, because the claimant had occasionally lost work as a result of his back condition and he had been medically cleared to return to work. The ALJ further found that the 2002 injury and the 2006 injury caused “distinct medical impairments” of the claimant’s low back.
Based upon his factual findings the ALJ concluded that the claimant had sustained a compensable injury to his low back in 2002. He rejected the respondent’s affirmative defense that the claim was barred by the statute of limitations. He also rejected the respondent’s argument that the claimant was barred by the equitable doctrine of claim preclusion from asserting that the 2002 injury caused permanent impairment.
The respondent appealed the ALJ’s order and argues that the ALJ erred in concluding that the claim was not barred by the applicable statute of limitations. We are unpersuaded that the ALJ committed reversible error.
It is well-established that the statute of limitations does not begin to run until the
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claimant recognizes the “nature, seriousness and probable compensable character of his injury.” City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). It is only the claimant’s recognition of all of these three separate factors that triggers the running of the statute of limitations. Here, the ALJ focused on the claimant’s recognition of the “seriousness” of the 2002 back injury. The requirement that the claimant recognize the seriousness of the injury contemplates that the claimant will recognize the gravity of the medical condition. This requirement obviates the necessity for employees to “rush in with claims for every minor ache, pain, or symptom.” 7 Larson’s Workers’ Compensation Law, § 126.05[5] (2007). Thus, our courts have held that where a claimant was aware of an industrial back injury, but unaware the injury might later cause a disc herniation, the claimant did not recognize the seriousness of the injury until the herniation was discovered. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo.App. 1984). In bot Dunagan and Valdez the claimants returned to employment following the industrial injuries, although it appears the claimant i Dunagan missed some time from work. Although a precise diagnosis is not essential, the opinions of treating physicians, as communicated to the claimant, are relevant in determining when the claimant recognized seriousness of the injury. 7 Larson’s Workers’ Compensation Law, § 78.41(e).
Ultimately, the question of when the claimant recognized the nature, seriousness, and probable compensable nature of the injury is one of fact for determination by the ALJ. See Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; Intermountain Rubber Industries v. Valdez, supra. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The respondent’s assertions notwithstanding, substantial evidence supports the ALJ’s determination that the claimant did not recognize the seriousness of his injury until May 2007, when Dr. Brodie testified that some portion of the claimant’s permanent impairment was attributable to the 2002 injury. The claimant testified that following his injury in 2002 he continued to perform his regular work either as a baggage handler or in the mail room, where he continued to move heavy bags of mail. Tr. at 25-27. He further testified that his “condition got better” and he therefore did not return to see Dr. Ogin, who had stated in October 2002 that he would soon be placed at maximum medical improvement. Tr. at 27-28. Moreover, as the ALJ noted in his findings, although the claimant missed some work because of his back in 2002 and 2003, see tr. at 29, he also missed time from work because of his back before that period. Further, the ALJ also relied upon the claimant’s testimony that he had no knowledge that he might have
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sustained permanent impairment as the result of the 2002 injury until Dr. Brodie “apportioned” some of his impairment to that event. Tr. at 20. In our view, it is a reasonable inference from this factual record that the claimant did not recognize that his back injury of 2002 was a “serious” one until Dr. Brodie informed him that it had resulted in permanent impairment.
Nor are we persuaded by the respondent’s argument that the ALJ improperly focused on the question whether the claimant sustained permanent impairment as a result of the 2002 back injury. The ALJ certainly emphasized that it was the notification to the claimant of possible permanent impairment resulting from the 2002 injury that informed him of the seriousness of the injury. And undoubtedly in other factual circumstances a claimant might have knowledge of the seriousness of an injury even absent the possibility that the injury resulted in permanent impairment. We therefore agree with the respondent’s argument that knowledge of the seriousness of an injury does no necessarily equate with knowledge of permanent impairment. However, here, it is evident from his order that the ALJ applied the correct legal standard to factual findings that are supported by the evidentiary record. In our view it is not that the ALJ erroneously believed that the statute of limitations only began to run when the claimant knew of the possibility of permanent impairment. Rather, the ALJ identified that point in the progress of the claim as the one notifying the claimant that the 2002 injury was a serious one. As noted, this inference is a reasonable one from the record and we perceive no error in the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order issued December 11, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
___________________________________ Thomas Schrant
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RICHARD BURNES JR., AURORA, CO, (Claimant)
UNITED AIRLINES, DENVER, CO, (Employer)
GALLAGHER BASSETT SERVICES, Attn: MELISSA RYAN, ENGLEWOOD, CO, (Insurer)
LAW OFFICE OF O’TOOLE SBARBARO, PC, Attn: NEIL D O’TOOLE, ESQ., DENVER, CO, (For Claimant)
RITSEMA LYON, PC, Attn: LYNN P. LYON, ESQ., SUITE 3100, DENVER, CO, (For Respondents)
UNITED AIRLINES DENCG, Attn: PAM BROWN, DENVER, CO, (Other Party)