W.C. No. 4-151-063Industrial Claim Appeals Office.
April 4, 1997
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which determined that the claim is barred by the statute of limitations. We set aside the order and remand for further proceedings and the entry of a new order.
The claim involves an extensive procedural history. The claimant was employed by Halliburton Services (employer) on August 1, 1985, when he suffered injuries in a motor vehicle accident. The claimant filed a third-party negligence action against the driver of the other vehicle. The negligence action was settled on October 26, 1992 for $110,000.
On October 26, 1992, the claimant also filed a claim for workers’ compensation benefits alleging that the August 1 injuries arose out of and in the course of his employment. The respondents denied liability, and in November 1992 filed a First Report of Injury. The respondents also moved for an order of “summary judgment” dismissing the claim on grounds that it is barred by the three year statute of limitations set forth in former § 8-52-105 C.R.S. (1986 Repl. Vol. 3B)[currently codified with changes at § 8-43-103(2), C.R.S. (1996 Cum. Supp.)]. Alternatively, the respondents requested a $110,000 offset against any workers’ compensation benefits the claimant might subsequently be awarded. The claimant objected to the motion for summary judgment and requested a hearing.
The ALJ determined that there was no material issue of fact, and therefore, granted the respondents’ request for a summary judgment. On May 5, 1995, the ALJ entered an order which suspended the first $110,000 of any workers’ compensation benefits subsequently awarded to the claimant. In support of his order, the ALJ determined that, prior to October 26, 1992 the respondents were not notified that the claimant “considered the accident on August 1, to be work related.”
On September 19, 1996, the ALJ entered a Summary Order dismissing the claim on grounds that it was barred by the statute of limitations. The claimant requested specific findings of fact which were issued on October 30, 1996. Insofar as pertinent, the ALJ found that the issue of whether the claimant gave the employer notice of a work-related injury before October 26, 1992, was resolved in the May 5 order, and therefore, the ALJ determined that the claimant was collaterally estopped from relitigating that issue. The ALJ added that even if the claimant were not collaterally estopped, the claimant failed to prove that the statute of limitations was tolled.
Thereafter, the claimant filed a “Motion for Reconsideration” of the May 5 order and, in the alternative, petitioned to reopen the May 5 order on grounds of error or mistake. The ALJ denied the Motion on November 26, 1996. The claimant also requested review of the orders dated May 5, September 19 and October 29, 1996. However, the ALJ dismissed the claimant’s request for review of the May 5 and September 19 orders. On December 16, 1996, the claimant filed a Petition for Review of the ALJ’s order which dismissed his appeal of the May 5 and September 19 orders.
In his appellate briefs, the claimant essentially argues that it was error for the ALJ to grant summary judgment because there is a factual dispute concerning whether the statute of limitations was tolled by the employer’s failure to file a First Report of Injury before November 1992. We agree with this argument.
As stated by the claimant, the fundamental tenets of due process require that, where an administrative adjudication turns on questions of fact, the parties must be “apprised of all the evidence to be submitted and considered, . . . afforded a reasonable opportunity in which to confront adverse witnesses and present evidence and argument in support of their position.” Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Summary judgment is appropriate only if there is no disputed issue of material fact and the movant is entitled to judgment as a matter of law. C.R.C.P. 56(e); Service Supply Co. v. Vallejos, 169 Colo. 14, 452 P.2d 387 (1969); Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995).
In pertinent part, former § 8-52-105(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 claim of the injured employee.” (Emphasis added).
The employer’s duty to “report said injury” refers to the statutory obligations under § 8-43-101(1) C.R.S. (1996 Cum. Supp.) [formerly §8-45-101 C.R.S. (1986 Repl. Vol. 3B)]. That statute provides that the employer shall issue a report to the Division of Workers’ Compensation within ten days of the employer’s “notice or knowledge” that an employee has sustained an occupational disease, a permanently impairing injury or a “lost time” injury which precludes the claimant from working in excess of three shifts or calendar days. Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987).
Contrary to the ALJ’s determination, it is not required that the claimant explicitly tell the employer that he considers an injury to be work-related in order for the employer to have “notice or knowledge” of an “injury,” sufficient to trigger its duties under section 8-43-101(1). Rather, as stated in Jones v. Adolph Coors Co. 689 P.2d 681, 684
(Colo.App. 1984), the applicable test is whether the employer has:
“some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.”
Here, the respondents asserted as a matter of fact that the employer had no such knowledge until receipt of the claimant’s October 26, 1992 claim for compensation. In contrast, the claimant asserted that the employer had such knowledge in August 1985. Furthermore, the claimant argued that his theory is supported by his deposition testimony.
Colorado law holds that if an employee is required to bring a personal vehicle to the work site for the employer’s benefit, injuries sustained by the employee while conveying the vehicle to an from the work site are compensable. Whale Communications v. Osborn, 759 P.2d 848
(Colo.App. 1988). In his deposition, the claimant testified that at the employer’s request, and to prevent the city from citing the employer for violation of its weed control policy, he brought his tractor and mower to the employer’s premises and mowed weeds on the employer’s property. (Finley depo., February 4, 1994, pp. 40-43; February 17, 1994 p. 24). The claimant stated that after work on August 1, he was driving the tractor home when he was involved in a motor vehicle accident and taken to the hospital. (Finley depo., February 4, 1994, p. 68).
The claimant testified that he told the hospital to notify the employer that he would not be at work. (Finley depo. February 4, 1994, p. 73). Thereafter, Karen Thorn, a secretary for the employer, came to the hospital and the claimant testified that he told Ms. Thorn about the accident. (Finley depo., February 4, 1994, p. 72; February 17, 1994, p. 56). The claimant also stated that the employer’s district safety man, Les Bird, interviewed him in the hospital about the accident. (Finley depo., February 4, 1994, pp. 77, 81).
Furthermore, the claimant testified that, upon his release from the hospital on August 8 or 9, 1985, several of the employers’ supervisors came to his home. (Finley depo. February 4, 1994, p. 77). The claimant testified that one of the supervisors, Bob Cunningham, told him that “if I didn’t make any, you know, sort of complaints or problems, that I would have a job for life.” (Finley depo., February 4, 1994, p. 84). According to the claimant, Mr. Cunningham also said, “don’t file this under workman’s comp. We don’t need to go that way. We can go this way and it will preserve the safety record for the camp, it will preserve your standing with the company, it will all be taken care of.” (Finley depo., February 17, 1994, pp. 69, 70, 73-74, 95, 206).
In the absence of a hearing, the ALJ is not free to reject the claimant’s testimony as incredible. See Trujillo v. Industrial Commission, 735 P.2d 211 (Colo.App. 1987). Further, the claimant’s deposition testimony, if believed would support the inference that in August 1985, the employer had knowledge of facts indicating to a reasonably conscientious manager that the claimant’s accident “might involve a potential compensation claim.” In fact, the claimant’s testimony suggests that Mr. Cunningham specifically admitted the employer was aware that there might be a claim for workers’ compensation benefits. Moreover, such an inference supports the claimant’s assertion that the statute of limitations was tolled by the employer’s failure to report the injury until 1992.
As a result, the ALJ erroneously determined that there was no material issue of fact concerning whether the employer had notice of the injury before October 1992. Thus, the ALJ also erred in resolving the statute of limitations question without affording the claimant an evidentiary hearing. See Service Supply Co. v. Vallejos, supra.
Under these circumstances, we must set aside the ALJ’s order which denies the claim and remand the matter to the ALJ for an evidentiary hearing, and a new order concerning whether the claim is barred by the statute of limitations.
In view of our remand, it is premature to consider the claimant’s remaining arguments. Therefore, we do not consider those arguments at this time.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 30, 1996, is set aside, and the matter is remanded to the ALJ for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed April 4, 1997 to the following parties:
Paul D. Finley, 202 98 County Rd. 52, Box 34, Padroni, CO 80745
Halliburton Services, P.O. Box 659, Brighton, CO 80601-0659
Gail Barbier, Morlan Co., 3333 N. Federal Blvd., Denver, CO 80211
Janet Zimmerman, Esq., 430 Jackson St., Sterling, CO 80751 (For the Claimant)
Robert A. Weinberger, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For the Respondents)
By: _______________________________