W.C. No. 4-174-196Industrial Claim Appeals Office.
November 22, 1995
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Friend (ALJ) which determined that the claim is barred by former § 8-52-105(2), C.R.S. (1986 Repl. Vol. 3B). We affirm.
Former § 8-52-105(2), provides that a claim is barred unless the claimant files a notice claiming workers’ compensation benefits within three years after the injury, or within five years of the injury, where the ALJ finds a reasonable excuse for the failure to file the notice within three years. The statute also states that:
“in 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 claim of the injured employee . . . . until the required report has been filed with the division.”
The ALJ’s pertinent factual determinations may be summarized as follows. The claimant was employed for the Prudential Insurance Company in Colorado (Prudential) from 1975 to 1985. In 1982 and thereafter, Prudential required the claimant to attend Friday sales meetings where he was exposed to second hand smoke. The smoke irritated the claimant’s nose and sinuses and aggravated the claimant’s pre-existing respiratory condition. It also aggravated the claimant’s compulsive-obsessive symptoms from Tourette Syndrome, which was subsequently diagnosed on May 31, 1991. As a result, the claimant was not effective during a sales meeting, after the meeting, through the weekend and missed work three out of every four Mondays following a Friday sales meeting. The claimant was not aware that the smoke was contributing to his lost time on Mondays, and his need for medical treatment until after his 1985 resignation from Prudential.
The claimant testified that he subsequently returned to work for Prudential in Kingston, New York from 1986 to 1989, and continued to experience problems due to work-related exposure to smoke. In 1993 the claimant filed a claim in New York for workers’ compensation benefits in connection with his employment for Prudential in New York, and a claim seeking Colorado workers’ compensation benefits in connection with his earlier employment for Prudential in Colorado.
Based upon these findings of fact the ALJ determined that the claimant knew or should have know of the probable compensable nature of his claim no later than March 1986. The ALJ also determined that while the claimant worked for Prudential in Colorado, Prudential did not know, and should not reasonably have known, of the possibility that the claimant would file a claim for benefits. Further, the ALJ determined that there was insufficient evidence to conclude that prior to 1993, the claimant advised Prudential in Colorado that his medical treatment and lost time in Colorado were attributable to second hand smoke. Therefore, the ALJ concluded that the May 1993 claim for Colorado Workers’ Compensation benefits was not filed within the statute of limitations, and consequently, denied and dismissed the claim.
In his Petition for Review of the ALJ’s Supplemental Order the claimant contends that the ALJ erred in concluding that the claim is barred by the statute of limitations. In support, the claimant argues that 1) the ALJ erred in “failing to find that the employer was notified of [the claimant’s] occupational disease prior to the end of his employment with Prudential in July 1989,” and 2) that the ALJ erred in “finding that [the claimant] knew or should have known of the compensable nature of his claim no later than March of 1986.” We perceive no reversible error.
As the claimant argues, the statute of limitations does not begin to run until the claimant “as a reasonable person should recognize the nature, seriousness and probably compensable character of” his injury. Crest Fence Co. v. Cec, 175 Colo. 21, 485 P.2d 709 (1971); City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). We have previously concluded that the term “compensable,” for purposes of the statute of limitations, means an injury which is disabling, and entitles the claimant to compensation in the form of disability benefits. Correll v. Storage Technology Corp., W.C. Nos. 4-221-615 4-219-452, July 28, 1995; Morford v. Fresh Express, W.C. No. 4-209-032, September 29, 1995. Consequently, the statute of limitations is begins to run when the claimant knows or should know that he has sustained a work related injury which probably entitles him to disability benefits. City of Boulder v. Payne, supra; CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982) (“injury” encompasses both accidental injuries and occupational diseases).
The determination of when the claimant, as a reasonable person, should recognize the probable compensable nature of his condition is a question of fact to be resolved by the ALJ. City of Boulder v. Payne, supra.
Moreover, § 8-43-301(8), C.R.S. (1995 Cum. Supp.) requires that we uphold the ALJ’s determination if supported by substantial evidence in the record General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118
(Colo.App. 1994).
Here, the claimant testified that on many occasions between 1982 and 1985 he missed work on Monday due to the problems caused by his exposure to second hand smoke during the Friday sales meetings. (Tr. 8/25/94 pp. 15, 46; 9/23/94 pp. 84, 116, 119). The claimant also stated that by March 1986 he realized that his lost work on Mondays was interconnected with his exposure to smoke. (Tr. 8/25/94 p. 44; 8/30/94 p. 24; 9/23/94 p. 90). Consequently, there is substantial evidence in the claimant’s testimony to support the ALJ’s determination that the claimant knew or should have known by March 1986 of the probable compensable nature of his condition. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (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); Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo.App. 1984).
The claimant’s arguments to the contrary are unpersuasive. At the commencement of the hearing the claimant stated that his occupational disease arose from the aggravation of a pre-existing condition known at Tourette Syndrome. (Tr. 8/25/94 p. 10). Further, the claimant concedes that he suffered the symptoms of Tourette Syndrome prior to 1991, even though the condition was not formally diagnosed until May 31, 1991. Under these circumstances, the ALJ was not precluded from finding that the claimant recognized the probable compensable nature of his condition prior to 1991, merely because a formal diagnosis was not made until 1991.
Nor are we persuaded that the claimant has established grounds which afford us a basis to interfere with the ALJ’s determination that the statute of limitations was not tolled. The employer’s duty under former § 8-52-105(2) to report the injury refers to the employer’s duties under former § 8-45-101 (1986 Repl. Vol. 3B) [currently codified at § 8-43-101 C.R.S. (1995 Cum. Supp.)]. Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987); Ascani v. CHKR, Inc., W.C. Nos. 4-183-696; 4-183-696; 4-183-698, November 3, 1994 aff’d Ascani v. Industrial Claim Appeals Office (Colo.App. No. 94CA1994, May 25, 1995) (not selected for publication).
Insofar as pertinent, § 8-43-101 requires the employer to file a report with the Division of Workers’ Compensation within ten days of knowledge that an employee has contracted an occupational disease; or a lost-time injury. Further, the employer’s reporting duty does not occur until the employer has “some knowledge of accompanying facts connecting the injury or illness with employment, and indicating to a reasonably conscientious manager that the case might involve a potential workers’ compensation claim.” Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984).
Here, the ALJ expressly acknowledged the claimant’s testimony that in 1983 or 1984 he complained to his manager that smoke during the sales meetings was making his lungs burn or was making him “sick.” (Tr. 8/25/94 p. 36, 44). However, the ALJ was not persuaded that the claimant was aware of the connection between his lost time on Mondays, his need for treatment and the smoke in 1983 and 1984. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ is free to credit all, part or none of the claimant’s testimony). Further, the ALJ inferred that because claimant did not understand the connection between his condition and his employment at the time of these complaints, a reasonably conscientious manager would not necessarily understand the claimant’s complaints as involving a potential workers’ compensation claim.
Although the ALJ may have interpreted the evidence differently, we cannot say that the ALJ’s finding is an implausible inference from the record as a whole. Consequently, we must disregard the evidence, which if credited, might support the opposite result. See Electric Mutual Liability Co. v. Industrial Commission, 154 Colo. 491, 391 P.2d 677 (1964) (where the evidence is susceptible of conflicting inferences, it is the ALJ’s sole prerogative to determine the inference to be drawn). Further, the claimant’s contention that he made Prudential aware of his potential workers’ compensation claim prior to 1986 is inconsistent with his contention that he was not aware of the probable compensable nature of his condition until 1991.
The claimant also cites various written complaints to Prudential in 1987 and 1988 (claimant’s hearing documents 30G) as evidence that the employer had notice of his potential claim for workers’ compensation. However, these written complaints refer to the claimant’s medical problems resulting from his exposure to second hand smoke during his employment for Prudential in Kingston, New York between 1986 and 1989, and appear to be directed to Prudential in Kingston. Consequently, the claimant’s 1987 and 1988 complaints need not be construed as placing Prudential on notice that the claimant was alleging that he sustained a compensable occupational disease during his employment in Colorado. Therefore, this evidence does not compel a finding that Prudential in Colorado had knowledge of the claimant’s occupational disease prior to 1993 or, as the claimant asserts, prior to July 1989.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated August 21, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed November 22, 1995 to the following parties:
Alfred Enisz, 1600 W. 6th Ave., Broomfield, CO 80020
Prudential Insurance Co., 343 W. Drake Rd., Fort Collins, CO 80526-2880
Travelers Ins., 1700 Broadway, Ste. 1910, Denver, CO 80290
William E. Benjamin, Esq., 2737 Mapleton, Ste. 103, Boulder, CO 80304
(For the Claimant)
Thomas J. DeMarino, Esq., Lynne A. Weitzel, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290
(For the Respondents)
BY: _______________________