W.C. No. 4-240-988Industrial Claim Appeals Office.
March 22, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which denied and dismissed his claim based on the occupational disease of silicosis. We affirm.
The issue in this case is whether the claimant filed a claim within five years of the “commencement of disability” as required by the statute currently codified at § 8-43-103(3), C.R.S. (1995 Cum. Supp.). The ALJ determined that the claim for compensation was filed on February 22, 1995, more than five years after the claimant knew, or reasonably should have known, that he suffered from a disability attributable to work-related “pulmonary problems.”
In support of his conclusion, the ALJ found that the claimant was aware of his respiratory problems as early as March 31, 1989, and no later than January 1990. Specifically, the ALJ noted that, on January 31, 1990, the claimant was medically evaluated for “dyspnea on exertion.” Further, the claimant applied for social security disability income (SSDI) benefits in 1990. During the course of the SSDI proceedings, the claimant contended that he had been unable to engage in “substantial gainful activity” since March 31, 1989, and that some of the disability was attributable to problems of “breathing with any exertion” and “chest pain.” The ALJ found that the claimant’s representations during the SSDI proceedings were inconsistent with his testimony at the workers’ compensation hearing that the SSDI award was solely based upon back problems.
On review, the claimant contends that the ALJ’s application of the statute of limitations is not supported by the evidence. The claimant argues that he did not know the “seriousness” of his condition until he was medically diagnosed with “moderate restrictive disease” in April 1990. Moreover, the claimant alleges that he was not aware of the “disabling nature” of his condition until Dr. Abel issued a formal report in November 1994. We reject the claimant’s arguments.
Colorado follows the “discovery rule” which holds that the statute of limitations does not commence to run until the claimant, as a reasonable person, “should recognize the nature, seriousness and probable compensable character of the injury.” City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). Under this rule it is not required that the claimant know the precise medical diagnosis of his condition so long as he is aware that its “nature” is serious and work-related. 2B Larson, Workmens’ Compensation Law § 78.41(d). In order for a condition to be “serious,” the claimant must be aware that the injury is to some degree disabling. See Romero v. Industrial Commission, 632 P.2d 1053 (Colo.App. 1981); 2B Larson, Workmens’ Compensation Law § 78.41(e). Further, the “probable compensable character” requirement reflects the need for the claimant to appreciate the causal relationship between the employment and the injury. 2B Larson, Workmens’ Compensation Law § 78.41(f).
In applying these principles, we are also bound by the rule that the ALJ’s pertinent findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Consequently, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., ___ P.2d ___ (Colo.App. No. 95CA1051, February 22, 1996).
The claimant’s argument notwithstanding, application of the statute of limitations was not precluded because the claimant did not have “actual knowledge” of his medical diagnosis until April 1990. The question is not whether the claimant had “actual knowledge,” but whether, as a reasonable person, he knew or should have known that his respiratory condition was serious and work-related.
Here, the hospital note from January 31, 1990 reflects that the claimant was suffering “dyspnea with exertion,” and was seeking a medical examination for purposes of a “compensation suit.” Moreover, the claimant himself testified that his lung condition was sufficiently serious to preclude work when he was “first tested in 1990.” (Tr. p. 15). This evidence supports the ALJ’s conclusion that the claimant knew, or should have known, that he had a serious, disabling, work-related lung condition in January 1990.
Moreover, as the ALJ found, the SSDI decision undermines the claimant’s assertion that the SSDI benefits were based solely on the pre-existing neck condition. To the contrary, the SSDI decision points out that the claimant’s request for SSDI benefits was based, in part, on a lung condition of which the claimant was fully aware in January 1990.
It is true that the evidence in this case might have supported a contrary conclusion concerning whether or not the claimant, as a reasonable person, recognized the nature, seriousness and probable compensable nature of his condition by January 1990. However, we are not free to substitute our judgement for that of the ALJ concerning the relevant factual determinations. Ackerman v. Hilton’s Mechanical Men, Inc., supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 27, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed March 22, 1996 to the following parties:
Clyde Jones, P.O. Box 2713, Shiprock, NM 87420
Umetco Minerals Corp., Employees Taxes Section G1-322, Danbury, CT 06817-0001
Colorado Compensation Insurance Authority, Attn: Legal Dept. (Interagency Mail)
Subsequent Injury Fund (Interagency Mail)
Robert C. Dawes, Esq., 572 E. Third Ave., Durango, CO 81301
(For the Claimant)
Scot J. Houska, Esq., 744 Horizon Court, Ste. 360, Grand Junction, CO 81506
(For the Respondents)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701
(For the Respondents)
J. Anthony Ogden, Esq., Office of the Attorney General, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
By: _____