W.C. No. 4-546-848.Industrial Claim Appeals Office.
January 5, 2006.
FINAL ORDER
The respondents seek review of an order dated September 29, 2005, of Administrative Law Judge Stuber (ALJ) that determined that the claimant’s occupational disease claims were not time-barred. ALJ Stuber determined that the claimant reasonably did not realize the nature, seriousness, and probable compensable character of his occupational diseases until he began to miss work, although the claimant previously had been instructed by his physician to take time off from work, and he previously knew or reasonably should have known that his physical conditions were due to work . We affirm.
The claimant filed a claim for workers’ compensation benefits on July 8, 2002, alleging that he suffered bilateral shoulder pain, rotator cuff tears, and had aggravated a degenerative back condition during his eleven years of employment. The respondents asserted the statute of limitations as a defense.
In an order dated May 28, 2003, ALJ Martinez found that the claimant’s physician advised him in 1996, 1997, and 1998 that his neck, hand, back and shoulder problems were either caused or aggravated by his work duties. ALJ Martinez also found that the claimant acknowledged that these conditions interfered with his ability to perform his job duties. ALJ Martinez concluded that the claimant reasonably should have recognized the nature, seriousness, and probable compensable character of the symptomatology which formed the basis of his claim no later than the end of 1998. ALJ Martinez determined that the claim was barred by the two-year statute of limitations, and on review we agreed.
In a decision announced November 24, 2004, the Court of Appeals concluded that we erroneously upheld ALJ Martinez’s order. The court held that ALJ Martinez erroneously found that the statute of limitations commenced on the date the claimant’s symptoms began instead of the date the disability manifested. Furthermore, stating that there was an absence of a finding or evidence that the claimant was disabled in 1998, the court concluded that ALJ Martinez’s dismissal of the claim was not supported by the record. Therefore, the court set aside our order and remanded the matter to us for further proceedings.
The determination of when the claimant recognized the probable compensable character of the injury is a question of fact. We have no authority to resolve issues of fact and therefore, remanded the matter to the ALJ for a new order consistent with the court’s order concerning whether the 2002 claim is barred by the statute of limitations.
ALJ Martinez had left his employment of the Office of Administrative Courts and the matter was reassigned to ALJ Stuber for issuance of a decision on the existing record. ALJ Stuber’s pertinent findings of fact are as follows. The claimant did not realize the nature, seriousness and probable compensable character of his occupational diseases until approximately December 2001 or January 2002, when he began to miss work due to medical appointments for his conditions. The claimant knew or reasonably should have known since at least 1996 that his conditions were due to work, but he did not have lost time until late 2001 or early 2002. Only at that later date did the claimant know or should the claimant reasonably have known that he suffered a compensable condition. Although Dr. Jabour instructed the claimant to take some time off work in 1998 due to his back condition, the claimant did not take off work. That unheeded medical instruction did not cause the claimant to suffer a wage loss and did not commence the running of the statute of limitations. The claimant’s occupational diseases caused him to be unable to perform his usual job duties effective June 28, 2002.
Based on these findings, ALJ Stuber determined that the claimant’s July 8, 2002, workers’ claim for compensation was filed within two years after he knew or reasonably should have known of the compensable nature of his disease. Accordingly, ALJ Stuber concluded that the claimant’s claims for compensation were not time-barred.
On review, the respondents contend that ALJ Stuber erred in his determination that the statute of limitations did not begin to run until the claimant sustained a wage loss. The respondents assert that the court opinion determined that ALJ Martinez had failed to find that the claimant was disabled in 1998 or that he was otherwise prevented from properly performing an integral part of his duties. Arguing that the claimant was disabled when he his ability to perform his duties was impaired, or alternatively, when he was advised to stop working and file a worker’s compensation claim, the respondents contend that ALJ Stuber erroneously equated “disabled” with sustaining an actual wage loss. We disagree.
ALJ Stuber specifically took note of the Court of Appeals opinion in this matter. ALJ Stuber stated that:
The May 28, 2003, order by ALJ Martinez denied and dismissed the claim because claimant had not filed his claim within two years after his occupational diseases arose in 1996. The Court of Appeals set aside ICAO’s order affirming the order by ALJ Martinez, holding that claimant did not realize the probable compensable character of his injury in 1996 because he continued to work and received regular wages. The Court of Appeals held that, for claimant to recognize the seriousness and probably compensable character of the injury, the injury must have been disabling. The Court disagreed with the ALJ’s determination that claimant’s alteration of some aspects of job performance constituted claimant’s recognition of compensability. Findings Of Fact, Conclusions Of Law, And Order Pursuant To Remand at 10 ¶ 4.
ALJ Stuber, consistent with the ruling by the Court of Appeals, found that although the claimant had been instructed by his physician to take some time off work in 1998 due to his back condition, claimant did not take off work. That unheeded medical instruction did not cause the claimant to suffer a wage loss and did not commence the running of the statute of limitations. Further, ALJ Stuber found that the claimant did not realize and reasonably did not recognize the nature, seriousness, and probable compensable character of his occupational diseases until approximately December 2001 or January 2002, when he began to miss work due to medical appointments for his conditions. ALJ Stuber also found that the claimant’s occupational disease caused him to be unable to perform his usual job duties effective June 28, 2002, and the claimant was temporarily and totally disabled as of that date. Therefore, the claimant’s July 8, 2002 workers’ claim was found to have been filed within two years after the claimant knew or reasonably should have known of the compensable nature of his diseases. Findings Of Fact, Conclusions Of Law, And Order Pursuant To Remand at 8 ¶ 49 and 50.
The determination of when the claimant recognized the probable compensable character of the injury is a question of fact. Because the issue is factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. The Court of Appeals has noted that the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
The respondents do not take issue with the essential factual findings of ALJ Stuber, only his conclusion that the claimant reasonably did not realize the probable compensable character of the injury until approximately December 2001 or January 2002, when he began to miss work due to medical appointments for his conditions.
As the respondents argue, the Court of Appeals opinion expressly states that ALJ Martinez failed to find that the claimant was disabled in 1998 or that he was otherwise prevented from properly performing an integral part of his duties. However, the opinion went on to say that because there was no finding or evidence that the claimant was disabled in 1998, the statute of limitations did not begin to run at that time, and claimant was not time barred from pursuing this claim (emphasis added). ALJ Stuber correctly noted that the Court of Appeals has already acknowledged ALJ Martinez’s finding, with supporting evidence, that the claimant had to change some aspects of how he performed his job duties in 1996 because certain tasks hurt his shoulders. The Court of Appeals nevertheless noted that the claimant did not work under any formal restrictions during 1996 through 1998, but instead continued to work his regular job and receive regular wages. Thus, we agree with ALJ Stuber’s observation that the Court of Appeals disagreed with ALJ Martinez’s determination that the claimant’s alteration of some aspects of job performance constituted disability which should have prompted the claimant’s recognition of compensability. The respondents essentially argue here that the only conclusion that can be drawn from the facts is the one previously made by ALJ Martinez and already rejected by the Court of Appeals. We disagree.
Since ALJ Stuber’s determination of when the claimant recognized the probable compensable character of the injury is amply supported by the evidence, the findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192
(Colo.App. 2002). Moreover, the ALJ’s application of the law is consistent with the Court of Appeals decision. Insofar as the court’s determination of disability is inconsistent with other court decisions, we conclude that we are bound by the court’s ruling in this case. Although the court did not acknowledge the evidence that the claimant’s physician advised him to stop working and file a claim in 1998, the court held that the record failed to show the claimant was disabled in 1998, and that the statute of limitations did not begin to run at that time. Therefore, we decline to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 29, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Dona Halsey
____________________________________ Tom Schrant
Arthur Ficco, Arvada, CO, Owens Brothers Concrete Co., Arvada, CO, Jack Kintzele, Esq., Denver, CO, (For Claimant).
Brandee DeFalco Galvin, Esq., Pinnacol Assurance — Interagency Mail (For Respondents).