W.C. No. 4-210-005Industrial Claim Appeals Office.
September 25, 1995
ORDER OF REMAND
The claimant seeks review of a final order of Chief Administrative Law Judge Felter (ALJ) insofar as it imposed a penalty for the claimant’s failure timely to report his occupational disease. We set aside the contested portion of the order, and remand for the entry of a new order.
From conflicting evidence, the ALJ found that the claimant suffered a compensable occupational disease in January 1994. The ALJ also found that the claimant’s last injurious exposure to the hazards of the disease occurred on January 7, 1994, when the claimant became temporarily and totally disabled. Therefore, the ALJ ordered the respondents to pay temporary total disability benefits commencing January 7, 1994.
However, the ALJ determined that the statutory language currently codified at § 8-43-102 C.R.S. (1995 Cum. Supp.), requires “employees to report injuries in writing to the employer within 4 days,” and the ALJ credited the testimony of the respondents’ witnesses, that the respondent-employer had no written notice of the claimant’s “injury” until May 5, 1994. Consequently, the ALJ reduced the claimant’s temporary total disability benefits by one day, for each day the claimant failed to provide timely written notice of the “injury” up to May 5, 1994.
On review, the claimant contends that the respondent-employer’s failure to post the notice required by § 8-43-102(1)(b), C.R.S. (1995 Cum. Supp.), tolled the reporting period, and therefore argues that he is not subject to a late reporting penalty. The claimant also contends that insofar as § 8-43-102(1)(b) may be construed to be inapplicable, the statute violates his constitutional right to equal protection and due process of law. Alternatively, the claimant contends that the ALJ erroneously calculated the penalty period. We agree with the claimant insofar as he contends that the ALJ miscalculated the penalty.
Admittedly, the term “injury” encompasses both “accidental injuries” and “occupational diseases.” Section 8-40-201(2), C.R.S. (1995 Cum. Supp.); CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332
(Colo.App. 1982). However, § 8-43-102 proscribes different reporting requirements for “accidental injuries” and “occupational diseases.” Section 8-43-102(1)(a) requires that an injury resulting from an “accident” be reported in writing, to the employer,”within four days of the occurrence of the injury.” In contrast, § 8-43-102(2) provides that:
“[W]ritten notice of the contraction of an occupational disease shall be given to the employer by the affected employee . . . within thirty days after the first distinct manifestation thereof.” (Emphasis added).
Here, the ALJ expressly found that the claimant’s compensable “injury” is in the nature of an “occupational disease.” Consequently, the claimant is subject to the reporting requirements set forth in subsection 8-43-102(2), and the ALJ erred insofar as he determined that the claimant was required to provide written notice of the injury within four days.
Rather, the claimant was required to give written notice of the injury within thirty days of the “first distinct manifestation” of the occupational disease. We have previously held that the determination of the “first distinct manifestation” is subject to the general principle that the time for providing notice of an injury does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of his injury. Row v. Shepard’s McGraw-Hill, Inc., W.C. No. 4-180-762, July 31, 1995; see also City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981).
Here, the ALJ did not make any written findings concerning the date, the claimant, as a reasonable person, should have recognized the nature or seriousness of his injury. Moreover, neither the date of the claimant’s “last injurious exposure” to the hazards of the disease nor the date the claimant became temporarily and totally disabled is dispositive of the “first distinct manifestation” of the disease. Cf. SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App. 1994) (date of injury for occupational disease is the date of the onset of disability and not the date of last injurious exposure); Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991) (onset of disability occurs when the disease restricts the employee to modified work). Consequently, the ALJ’s written findings are insufficient to ascertain the date by which the claimant was required to provide notice of his occupational disease.
Upon review of the ALJ’s oral ruling, we note the ALJ’s determination that the evidence is subject to conflicting inferences concerning the date the claimant recognized the seriousness of his injury. Tr. pp. 77, 78 CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Therefore, it is necessary to remand the matter to the ALJ to resolve the conflicts, and make a specific determination of the date the claimant experienced the “first distinct manifestation” of the occupational disease. Based upon this determination, the ALJ may then determine the penalty to be imposed.
For the purpose of our remand, we note a further distinction between subsections 8-43-102(1) and (2). Under both subsections the imposition of a penalty is discretionary. However, § 8-43-102(1) states that the claimant “may lose up to one day’s compensation for each day’s failure to so report,” and § 8-43-102(2) states that the ALJ “may reduce the compensation that would otherwise have been payable in such manner and to such extent” as he considers to be “just, reasonable, and proper under the existing circumstances.” Accordingly, and contrary to the indication by the ALJ in his oral ruling, the imposition of a particular length or amount of penalty is not mandatory. Tr. p. 86.
In remanding this matter, we also necessarily reject the claimant’s contention that the reporting period was tolled by the employer’s failure to post the printed card required by subsection 8-43-102(1)(b), to advise employees of their duty to make a written injury report within four days. As we stated, § 8-43-102(1) governs “accidental injuries,” and this claim is governed by the reporting requirements in § 8-43-102(2). Furthermore, §8-43-102(2) contains no comparable posting requirement, and we have no authority to read nonexistent provisions into the statute. See Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985).
Moreover, we lack authority to resolve the claimant’s contention that this construction of § 8-43-102(2) renders the statute unconstitutional Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971). Therefore, we do not address the claimant’s constitutional challenges.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 5, 1995, is set aside insofar as it imposes a penalty, and the matter is remanded for the entry of a new order on this issue which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Copies of this decision were mailed September 25, 1995 to the following parties:
John Guthrie, 4322 S. Evanston Ct., Aurora, CO 80015
Carpet Mill Outlet Stores, 711 S. Cherokee, Denver, CO 80223
Mid-Century Insurance, Attn: John Egland, P.O. Box 378230, Denver, CO 80237
Roger Fraley, Jr., Esq., 3113 E. 3rd Ave., #200, Denver, CO 80206 (For the Claimant)
Andrew R. Bantham, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondents)
BY: _______________________