W.C. Nos. 4-297-988, 4-547-972.Industrial Claim Appeals Office.
March 14, 2005.
FINAL ORDER
The respondents, Automatic Data Processing Inc. (Automatic) and its insurer, Liberty Mutual Insurance Company (Liberty) seek review of an order of Administrative Law Judge Coughlin (ALJ) which determined the claimant sustained a substantial and permanent aggravation of an occupational disease while Liberty was the insurer on the risk and awarded medical benefits. We affirm the award of medical benefits, dismiss without prejudice the petition to review the award of “compensatory” benefits, and remand the matter for a determination of the amount of compensatory benefits payable to the claimant.
At all times relevant the claimant was employed by Automatic. From July 1987 through June 1997 Automatic was insured by Continental Casualty Company (Continental). Liberty became the employer’s workers’ compensation insurer effective July 1, 1997.
In 1986 the claimant sustained an occupational disease to her left
upper extremity and neck from the repetitive activities required of her employment. Continental admitted liability as a “no lost time” injury. The claim was closed in 1997 pursuant to Continental’s filing of an uncontested Final Admission of Liability for medical impairment benefits based on 10 percent impairment to the neck.
The claimant resumed modified employment duties and was restricted to working no more than 40 hours a week. However, she assumed some new duties and occasionally worked more than 40 hours. In 1998 the claimant’s condition began to worsen. The claimant also developed symptoms in he right upper extremity. As a result of the worsening the claimant reduced her schedule from full-time to part-time work. However, the claimant’s condition continued to deteriorate. Effective September 1999 the claimant was completely disabled.
In January 2002 the claimant petitioned to reopen the 1986 injury claim and alleged a worsening of condition. The claimant also filed a workers’ compensation claim against the respondents and alleged a new injury on September 14, 1999. The respondents argued the claim was barred by the two-year statute of limitations in § 8-43-103(2), 2004.
Insofar as pertinent, the ALJ found the claimant established a reasonable excuse for failing to file a workers’ compensation claim against the respondents within two years and implicitly determined the delay was not prejudicial. Further, the ALJ determined the claimant was last injuriously exposed to the hazards of the occupational disease and suffered a substantial, permanent aggravation from her employment activities after July 1, 1997. Therefore, the ALJ denied the petition to reopen and ordered the respondents to provide the medical benefits recommended by Dr. Hughes.
On review the respondents renew their contention that the claim is barred by the statute of limitations. In support, the respondents argue the claimant knew by 1999 that her condition had worsened, that it was disabling, and that it was work-related. Under these circumstances, the respondents contend the ALJ was precluded from finding a reasonable excuse for the claimant’s failure to file the claim within 2 years. We disagree.
Section 8-41-304(1), C.R.S. 2004, provides as follows:
Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.
However, liability for medical benefits in cases of occupational disease is not governed by § 8-41-304(1), C.R.S. 2004. This is because the statute applies to “compensation,” and the court held that medical expenses are distinguishable from indemnity benefits. Instead, Thus, to impose liability for medical benefits on a particular employer, the evidence must demonstrate that the employment with that employer caused, aggravated, or accelerated the claimant’s injury. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637, 640 (Colo.App. 2001)
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. 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).
However, the two year limitation period does not apply if:
“it is established to the satisfaction of the director within three years after the injury or death that a reasonable excuse exists for the failure to file such notice claiming compensation and if the employer’s rights have not been prejudiced thereby.”
As argued by the respondents, not every excuse for a late filing constitutes a “legal” excuse. Armour and Co. v. Industrial Commission, 149 Colo. 251, 368 P.2d 798 (1966). Rather, the excuse must be one which is reasonably sufficient to justify the delay in view of the attendant circumstances. Silsby v. Tops Drive-In Restaurant-Dutton Enterprises, Inc., 160 Colo. 549, 418 P.2d 525 (1966).
The ALJ has wide discretion in determining whether the claimant presented a “reasonable excuse” for failure to file a claim within the two year statute of limitations. Further, a determination that the claimant has a reasonable excuse will not be set aside except on a showing of fraud or abuse of discretion. Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970). An abuse may be shown where the order is contrary to law, or not supported by substantial evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, the ALJ found that despite the claimant’s knowledge about her disabling medical condition, her failure to file the claim until 2002 was excusable because:
“Claimant’s complex medical condition and the insurance issues presented by such complexities lead to understandable confusion on the part of the Employer, Insurers, and the Claimant. Thus, to the extent Claimant failed to file a formal claim within the two year period, she had a reasonable excuse because she did not recognize the `magnitude’ or the possible compensable nature of the occupational components of her medical condition.”
The respondents arguments notwithstanding, there is substantial evidence in the claimant’s testimony and the medical reports that the compensable nature of the claimant’s worsened condition was subject to confusion because the claimant had pre-existing occupational and non-occupational medical problems on July 1, 1997. For example, the claimant testified that she was symptomatic in her left wrist and neck in March 1997 when she was placed at MMI. (Tr. p. 43). When her condition began to worsen the claimant considered it a temporary condition and thus, did not consider a need to file new workers’ compensation claim. However, the claimant’s condition did not improve when she reduced her hours, and her pain continued to be aggravated by activities of daily living. (Tr. pp. 48, 59, 60). When the claimant eventually sought additional medical treatment for the worsened condition, she was diagnosed with cervical dystonia and medical records reflect that her ongoing cervical problems were attributed to that non-occupational condition. Further, the claimant’s right upper extremity problems began in her right thumb, and it is undisputed the claimant suffered pre-existing, non-occupational arthritis in the right thumb. (see Tr. p. 47). Under these circumstances, the we agree with the ALJ that the claimant was reasonably confused about the cause of the worsened condition.
Moreover, when the claimant finally sought workers’ compensation coverage, Continental denied coverage and informed the claimant that the new insurer, Liberty was liable. (Tr. p. 81). Based upon this evidence the ALJ’s finding the claimant proved a reasonable excuse for the delay in filing the claim does not exceed the bounds of reason.
The respondents also contend there is not substantial evidence that the claimant suffered a “substantial” aggravation of the occupational disease after July 1, 1997. Therefore, the respondents contest the ALJ’s finding that the respondents are liable for “compensatory benefits.” We conclude this portion of the ALJ’s order is not currently subject to review.
Section 8-43-301(2), C.R.S. 2004 only allows us to review orders which require a “party to pay a penalty or benefits or denies a claimant a benefit or penalty.” See Natkin Co. v. Eubanks, 775 P.2d 88
(Colo.App. 1989). An order which determines the employer’s liability for benefits but does not determine the amount of benefits is not an order requiring the payment of benefits. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989) (orders may be partially final and partially interlocutory); Great West Casualty Co. v. Tolbert, (Colo.App. No. 90CA0046, October 4, 1990) (not selected for publication) an order requiring the payment of benefits “to which the claimant may be entitled” was held to be interlocutory.
Here, the ALJ determined that the claimant’s entitlement to compensatory benefits in the form of temporary total disability benefits was not “sufficiently pursued at hearing by the parties to permit determination.” (See Conclusions of Law p. 15). Therefore, the ALJ did not determine the amount of compensatory benefits to be paid and expressly reserved that for future determination. Under these circumstances, the issue of whether the record supports the ALJ’s finding that the respondents are liable for disability benefits under § 8-41-304(1) is not properly before us on review.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 22, 2004, is affirmed insofar as it awarded medical benefits
IT IS FURTHER ORDERED that the respondents’ petition to review the award of compensatory benefits is dismissed without prejudice and the matter is remanded to the ALJ for further proceedings and the entry of an order concerning the amount of compensatory benefits to be paid.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Margaret A. Hogan, 6711 S. Cherry St., Centennial, CO 80122
Automatic Data Processing, Inc., c/o Cathy Threadgill, One ADP Blvd., Roseland, NJ 07068
Automatic Data Processing, Inc., c/o Mary Ann Zimmerman, ADP Southwest Region, 7474 W. Chandler Blvd., Chandler, AZ 85226-3204
Liberty Mutual Insurance Company, P.O. Box 168208, Irving, TX 75016
Continental Casualty Company, c/o Mary Koch, CNA, P.O. Box 17369, Denver, CO 80217
Janet Frickey, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80214 (For Claimant)
Raymond A. Melton, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents
Automatic Data Processing, Inc. and Liberty Mutual Insurance Company)
David J. Dworkin, Esq. and Bernadette Wasilik, Esq., 3900 E. Mexico Ave., #1300,
Denver, CO 80210 (For Respondents Automatic Data Processing, Inc. and Continental Casualty Company)