W.C. No. 4-152-423Industrial Claim Appeals Office.
August 10, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which denied and dismissed her petition to reopen. The claimant contends the ALJ erroneously determined that the petition to reopen was barred by the six year statute of limitations found in § 8-43-303(1), C.R.S. 1997. The claimant also argues that the ALJ erroneously concluded that, in the alternative, the claim is barred under § 8-41-206, C.R.S. 1997, because no disability began within five years after the date of injury. We affirm the denial of the petition to reopen.
The claimant was a food service worker at Colorado State University (CSU) from 1969 through her retirement in May 1992. The claimant’s duties required repetitive motion of her upper and lower extremities, and this motion caused an admitted occupational disease. Apparently, the disease is classified as an aggravation of non-industrial osteoarthritis.
The ALJ found that the claimant first experienced symptoms of the disease in the mid to late 1980s, and she sought medical treatment for her right wrist in February 1988. The claimant testified that she sought treatment because her hands “cramped up” and “froze” while she was chopping food in the salad area. (Tr. p. 8). Afterwards, the claimant did not miss time from work, but she testified that she would sometimes go home because she was not feeling well. (Tr. pp. 10, 16). In early 1992, the claimant received treatment for upper extremity pain from the respondents’ authorized physicians.
In the fall of 1992, the claimant experienced additional difficulties with her upper and lower extremities, and returned to the authorized physicians. These physicians opined that the claimant’s osteoarthritis is not work-related and referred her to an HMO physician.
In December 1992, the respondents filed a First Report of Injury listing the date of injury as September 2, 1992. On December 28, 1992, the respondents filed a Final Admission of Liability admitting for $918.19 in medical benefits. The final admission listed the date of injury as December 13, 1991.
Following her retirement in May 1992, the claimant’s condition continued to deteriorate and she sometimes experienced an increase in symptoms. In 1997, the claimant had a “flare up” and was diagnosed with osteoarthritis of the right knee. Consequently, on May 30, 1997, the claimant filed a petition to reopen alleging a change of condition. Alternatively, the claimant alleged an error or mistake because the final admission of liability contained no admission for permanent disability benefits.
As a result of her condition, the claimant was required to undergo arthroscopic surgery on her right knee. The surgery was performed on July 11, 1997.
Under these circumstances, the ALJ accepted the respondents’ argument that the petition to reopen is barred by the statute of limitations contained in § 8-43-303(1). In so doing, the ALJ credited the claimant’s “hearing testimony,” as well as medical evidence, indicating that the claimant experienced an “onset of disability” from her disease in February 1988. The ALJ also found that the claimant understood the “nature and severity of her condition” at that time. Because the petition to review was filed more than six years after February 1988, and more than two years after the payment of the last medical benefits, the ALJ ruled that the claim is barred.
Alternatively, the ALJ ruled that if the claimant did not become disabled until her knee surgery in 1997, the claim is barred under § 8-41-206. The ALJ reasoned that the claimant’s disabling surgery occurred more than five years after the 1988 date of injury, and concluded that the claimant’s “resulting disability” does not “relate back” to 1988.
On review, the claimant contends the record does not support the ALJ’s use of 1988 as the “date of injury” for purposes of the statute of limitations. The claimant argues that she did not sustain an injury in 1988 because she did not miss time from work, no claim was filed, and no first report of injury was filed. Thus, the claimant reasons that the December 1991 date of injury contained in the Final Admission “is the only real injury in the case.” We reject this argument.
Section 8-43-303(1) provides that a petition to reopen may be filed “at any time within six years after the date of injury.” In a case of occupational disease the “date of injury” is the date on which the claimant experiences the “onset of disability.” Ortiz v. Charles J. Murphy Co., ___ P.2d ___ (Colo.App. No. 98CA0086, July 23, 1998). The “onset of disability” is not synonymous with missing work. Instead, an onset of disability occurs if the occupational disease impairs the claimant’s ability effectively and properly to perform his or her regular employment, or renders the claimant incapable of returning to work except in a restricted capacity. Ortiz v. Charles J. Murphy Co., supra; Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991).
The question of whether the claimant experienced an “onset of disability” in 1988 is largely one of fact, and there is no requirement to produce medical evidence of restrictions to establish disability. See Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). Consequently, to the extent the ALJ’s finding of an onset of disability in 1988 is supported by substantial evidence, it must be upheld. Section 8-43-301(8), C.R.S. 1997. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The claimant’s argument notwithstanding, the record contains substantial evidence that she experienced an onset of disability in February 1988. The claimant testified that she was required to leave work as a result of cramping, and that she immediately sought medical attention. The claimant also testified that she occasionally left work because of her ongoing joint pain. The claimant’s testimony and the medical evidence that the claimant’s repetitive work activities aggravated her osteoarthritis support the ALJ’s inference that, by 1988, the occupational disease was impairing the claimant’s ability to perform her job. The fact that no claim or first report had been filed does not change this fact.
In any event, we conclude that the claimant waived her argument that the evidence is insufficient to support an onset of disability in February 1988. The law prohibits a party from asserting one position before the ALJ while taking a contrary position on appeal. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993).
At the conclusion of the hearing, the ALJ sought to clarify the parties’ respective legal arguments. When the ALJ inquired of claimant’s counsel when the claimant believed the disability began, the following colloquy occurred:
“Mr. Johnson: Well, your honor, this is an occupational disease type of case. I think it started probably in 1988 and continued on up until her last day of work at CSU.
The Court: It started before the admitted date of injury?
Mr. Johnson: Well, and continued on up until at least May 1992.”
(Tr. p. 20)
Later, counsel for claimant advised the ALJ that, even if the “date of disability was 1988,” the claimant would argue that the six year statute of limitations would not begin to run until the claim was closed pursuant to the respondents’ final admission. (Tr. p. 22).
Thus, at the hearing counsel for the claimant argued to the ALJ that the claimant sustained an onset of disability in February 1988, but asserted that the date of onset was not controlling because the claimant sustained an “ongoing” injury. In view of these representations to the ALJ, the claimant may not argue on appeal that the ALJ erroneously determined that the “onset of disability” occurred in February 1988. Similarly, she should have argued at the hearing that the respondents were bound by the date of injury admitted in the final admission, or that the statute was equitably tolled.
If follows that the ALJ correctly ruled that the claimant’s petition to reopen was filed more than six years after the February 1988 “date of injury,” and the claim is barred by the statute of limitations. In view of this determination, we need not address the claimant’s arguments concerning the applicability of § 8-41-206.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 29, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed August 10, 1998 to the following parties:
Margie Maes, P.O. Box 338, Ft. Collins, CO 80522-0338
Colorado State University, Environmental Health Services, Attn: Dan Pena, 141 General Services Building, Ft. Collins, CO 80523-6021
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Bradley W. Johnson, Esq., 116 N. College, #1, P.O. Box 1838, Ft. Collins, CO 80522 (For Claimant)
By: _______________________