W.C. No. 4-546-848Industrial Claim Appeals Office.
November 20, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined his workers’ compensation claim is barred by the two year statute of limitations in § 8-43-103(2), C.R.S. 2003. We affirm.
In July 2002, the claimant filed a claim for workers’ compensation benefits and alleged a repetitive lifting injury to his upper extremities in February 2002. The claimant previously suffered prior injuries in 1978 and 1991.
The ALJ found the claimant first began experiencing shoulder problems in 1996 and as a result of his symptomatology had to change some aspects of how he performed his job duties. The ALJ also found that in 1996, 1997 and 1998, Dr. Jabour advised the claimant that his neck, hand, back and shoulder problems were either caused or aggravated by his work duties and recommended the claimant take time off work to reduce his symptomatology. Based on these findings, the ALJ determined the claimant reasonably should have recognized the nature, seriousness and probable compensable character of his symptomatology no later than the end of 1998. Consequently, the ALJ determined the July 2002 claim for workers’ compensation benefits was barred by the statute of limitations.
On review the claimant contends the ALJ erroneously applied the “onset of disability” rule in finding that the statute of limitations began to run when the claimant modified his work duties to accommodate his injury. Rather, the claimant argues the statute of limitations did not begin until he actually lost time from work. The claimant also contests the sufficiency of the record to support the ALJ’s findings of fact. Further, the claimant contends the ALJ’s findings are contrary to the humanitarian purposes of the Workers’ Compensation Act (Act) to assist injured workers and their families. We perceive no basis to disturb the ALJ’s order.
Section 8-43-103(2), provides that the right to workers’ compensation benefits is barred unless a formal claim is filed within two years after the injury. However, 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). The requirement that the claimant recognize the “seriousness” of the injury contemplates the claimant will recognize the gravity of the medical condition. Further, 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 injury must be of sufficient magnitude that it causes a disability which would lead a reasonable person to recognize that he may be entitled to compensation benefits. Romero v. Industrial Commission, supra (claimant was not obligated to report an injury until its seriousness was discovered and she was forced to stop work); Hoaglund v. B B Excavating, W.C. No. 4-465-123 (September 13, 2001); Correll v. Storage Technology Corp., W.C. No. 4-221-615 (July 28, 1995) (in occupational disease cases the date of claimant’s “injury” for purposes of the statute of limitations occurred later than the “onset of disability” because, although the claimant sustained some impairment of his ability to perform regular duties in 1990, he did not become entitled to any compensation for temporary disability until he underwent surgery in 1994).
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. 2003. 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).
We note that where the claimant’s injury is in the nature of an occupational disease, the rights and liabilities of the parties are governed by the law in effect at the “onset of disability,” and the disease is not compensable unless it causes disability. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). However, an occupational disease may cause “disability” which does not entitle the claimant to disability benefits. This is true because the claimant suffers the onset of disability when the occupational disease impairs the claimant’s ability to effectively and properly perform his regular employment. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991). Under such circumstances, the claimant is “disabled” but not necessarily entitled to disability benefits if modified work is provided at the claimant’s pre-injury wage. Accordingly, the “onset of disability” rule does not govern the statute of limitations for filing a workers’ compensation claim.
Contrary to the claimant’s arguments, the ALJ’s order reflects his recognition and application of the correct legal standard. The ALJ did not find that the statute of limitations began to run when the claimant had to modify his work duties. Rather, the ALJ found that because the claimant’s symptoms were sufficiently significant to require him to change his job duties, the claimant had some awareness of the nature and seriousness of his injury. Furthermore, the ALJ determined that a reasonable man would have believed his condition was probably compensable after Dr. Jabour told him the medical problems were “caused or aggravated by his work,” and recommended the claimant refrain from work to reduce his symptomatology. In other words, a reasonable man would have believed that had he taken time off of work as Dr. Jabour recommended, that he would have been paid temporary disability benefits for his loss wages See Dyrkopp v. Industrial Claim Appeals Office 30 P.3d 821 (Colo.App. 2001) (claimant presumed to know the law); § 8-42-103(1)(a), C.R.S. 2003 (temporary disability benefits are payable where the injury causes the claimant to miss more than three shifts from work); 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); Born v. University of Denver, W.C. No. 4-337-504 (May 9, 2001).
The ALJ’s pertinent findings are supported by substantial, albeit conflicting evidence and plausible inferences drawn from the medical reports of Dr. Jabour. Furthermore, the ALJ’s findings support the conclusion that the July 2002 claim for workers’ compensation is barred by the two year statute of limitations.
Contrary to the claimant’s further argument there is substantial evidence in respondents’ hearing exhibit T and the testimony of the respondents’ witnesses, Arthur Brewer and Leonard Owens, (see Tr. pp. 81, 95), to support Finding of Fact 26, where the ALJ determined that instead of reporting a work-related injury in 2001 or January 2002, the claimant told his supervisor and co-workers that his pain was caused by an old injury, not related to the employment.
The claimant’s remaining arguments have been considered and do not alter our conclusions. Furthermore, in view of our disposition we need not consider the claimant’s contention the ALJ erroneously required the presentation of medical evidence to prove the cause of his medical condition or the claimant’s challenge to the sufficiency of evidence to support Finding of Fact 25 concerning Dr. Robinson’s opinions on causation.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 28, 2003, 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. 2003. 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 order were mailed to the parties at the addresses shown below on November 20, 2003by A. Hurtado.
Arthur Ficco, 7058 Xenon Ct., Arvada, CO 80004
Owens Brothers Concrete Company, 5550 Sheridan Blvd., Arvada, CO 80002
Legal Department, Pinnacol Assurance — Interagency Mail
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Merrily S. Archer, Esq. and Douglas P. Ruegsegger, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)