W.C. No. 4-180-739, 4-250-840Industrial Claim Appeals Office.
July 24, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ), which determined that the claim for her 1989 injury is barred by the applicable statute of limitations. We affirm.
The ALJ found that the claimant sustained injuries to her neck and upper extremities on August 25, 1989, while performing duties in the course of her employment as a police officer. These injuries did not cause the claimant to miss more than three days of work although she received “extensive diagnostic and medical treatment, including four or five months of physical therapy.” The ALJ also found that the claimant did not receive copies of medical records generated by this treatment.
The claimant sustained a second industrial injury to her left shoulder and neck in the latter part of 1992. During the course of treatment for this injury the claimant was referred to Dr. Vostinak, who examined her in January 1993. The ALJ found that Dr. Vostinak questioned the claimant concerning whether she had a prior neck injury. Of further significance, Dr. Vostinak’s office note of January 22, 1993, notes a “causal relationship” between the claimant’s 1989 neck injury and her ongoing symptoms, and states that the claimant was going to “investigate the status of her old workers comp. case.” The ALJ found that the claimant confirmed the causal relationship between the 1989 injury and her ongoing symptoms sometime in January or February, 1993.
The ALJ also found that the claimant retained a workers’ compensation attorney soon after meeting with Dr. Vostinak in February 1993. Between April 1993 and March 1994, the claimant sent four letters to the attorney inquiring as to the status of her case. However, the attorney did not respond. Consequently, the claimant retained her current counsel in August or September 1994.
It is undisputed that the claimant did not file a claim for the 1989 injury until May 1, 1995. Further, the parties stipulated that the employer filed a timely first report of injury with the Division.
Under these circumstances, the respondent contended that the claim for the 1989 injury is barred by the two year statute of limitations found at former § 8-52-105(2), C.R.S. (1996 Cum. Supp.) [currently § 8-43-103(2), C.R.S. (1996 Cum. Supp.)]. The ALJ agreed with this argument, concluding that the claimant recognized the nature, seriousness and probable compensable nature of the 1989 injury “in January or February, 1993.” In so doing, the ALJ stated the following:
“The `nature of the injury’ concerns Claimant’s appreciation of the general diagnosis. `Seriousness’ refers to the likely consequences of the injury. `Probable compensable character’ does not refer to permanency, but rather to an understanding of the relationship between the injury and the employment. Dunagan v. City of Durango, W.C. Nos. 4-248-644 and 4-248-645
(ICAO, May 15, 1996).”
I.
On review, the claimant first contends that the ALJ’s order reflects an incorrect application of the law. In support of this argument, the claimant cites that portion of the ALJ’s order in which he stated that the element of probable compensable character of the injury “does not refer to permanency, but rather to an understanding of the relationship between the injury and the employment.” The claimant argues that the concept of a compensable injury also connotes the existence of a “disability,” and that the ALJ failed to consider this factor. The claimant also argues that she did not recognize the compensable character of the injury until 1995 because she did not “understand that she may have been entitled to permanent impairment benefits on her 1989 claim until sometime in 1995.” We are not persuaded by these arguments.
Our courts have adopted the “discovery rule” which holds that the statute of limitations does not commence running 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). As we noted in Dunagan v. City of Durango, supra, aff’d., City of Durango v. Dunagan, ___ P.2d ___ (Colo.App. No. 96CA0973, May 1, 1997), these elements are “distinct, though interrelated.” As correctly stated by the ALJ, we have held that the “probable compensable character” element focuses on the issue of a causal relationship between the injury and the employment, while the “seriousness” element concerns the likely consequences of the injury. The “seriousness” concept encompasses the requirement that the injury be “to some degree disabling.” See Jones v. Umetco Minerals Corp., W.C. No. 4-240-988 (March 22, 1996); aff’d. Jones v. Industrial Claim Appeals Office,
(Colo.App. 96CA0652, March 20, 1997) (not selected for publication) cf. Romero v. Industrial Commission, 632 P.2d 1053 (Colo.App. 1981).
Consequently, we reject the claimant’s assertion that the ALJ failed to recognize the applicable law. The ALJ’s order reflects that he considered all three factors of the test, including the “seriousness” element. With regard to the “disability” issue, the ALJ found that by February 1993 the claimant recognized not only the “cause” of her symptoms, but intended to “investigate the status of her `old’ claim.” In fact, the claimant did so by hiring an attorney. Implicit in these findings is the ALJ’s conclusion that, by February 1993, the claimant as a reasonable person would have recognized that the 1989 injury had caused permanently disabling consequences, and therefore, was probably compensable.
Moreover, we reject the claimant’s assertion that the evidence does not support the ALJ’s implicit finding that the claimant realized the seriousness of her injury. In this regard, we are bound by the ALJ’s pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ found that the claimant decided to investigate the status of her 1989 claim after speaking with Dr. Vostinak in January 1993, and that the claimant retained an attorney for this purpose. Moreover, the claimant testified after she spoke with Dr. Vostinak she was aware that she might have “permanent damage,” including migraine headaches, as a result of the 1989 injury. (Tr. pp. 24-25). Thus, a plausible interpretation of the evidence is that a reasonable person would have appreciated the disabling, and hence serious, nature of the 1989 injury.
The claimant also argues that she did not understand that filing a claim was “an option” until May 1995. However, the claimant’s understanding of the law is not an element under the discovery rule established by City of Boulder v. Payne. Rather, the claimant is presumed to know her legal rights, and a mistake in this regard does not constitute an excuse for filing a claim after the statute of limitations has run. See, 7 Larson Workers’ Compensation Law, § 78.47; Ramos v. Sears Roebuck Co., W.C. No. 4-156-827 (February 10, 1994). Thus, the claimant’s understanding of her legal rights is not a basis for setting the order aside.
We recognize the respondent’s assertion that the ALJ found that the claimant recognized the probable compensable nature of her injury as early as 1989. While the Summary Order might permit that argument, it is clearly contrary to the ALJ’s Final Order in which he expressly found that the claimant recognized the nature, seriousness, and probable compensable nature of her injury in February 1993. It is the Final Order which we must review, and therefore, we do not address the respondent’s argument on this point.
II.
The claimant next contends that the ALJ did not make sufficient findings of fact concerning her assertion that there was an “equitable tolling” of the statute of limitations. The claimant argues that there was an equitable tolling because she detrimentally relied on her prior counsel, and because the respondent failed to provide her with copies of her medical records. We are not persuaded.
Initially, we note that the ALJ determined that the claimant did not present a “reasonable excuse” for extending the statute of limitations under § 8-52-105(2). We do not understand the claimant’s “equitable tolling” arguments as an attack on the ALJ’s finding of no reasonable excuse, and therefore, do not consider this question.
As the claimant argues, our courts have determined that there may be an “equitable tolling” of the statute of limitations when “fairness” so requires. In Garrett v. Arrowhead Improvement Association, 826 P.2d 850 (Colo. 1992), our Supreme Court held that the evidence might support an equitable tolling where the respondents failed to provide a claimant with a medical report as required by the applicable rules of procedure. The medical report, which came into the respondents’ possession prior to the running of the statute of limitations for reopening, arguably established that the claimant had suffered a worsening of condition. Moreover, the claimant was required to file a medical report with the petition to reopen.
In remanding the case, the Garrett court noted the general principle that a party should not be permitted to take advantage of his own wrong. Consequently, the court stated the following:
“Equity will toll a statute of limitations if a party fails to disclose information that he is legally required to reveal and the other party is prejudiced thereby. [Citation omitted] . . . It is necessary to determine the extent of Garrett’s knowledge concerning the medical diagnosis that his condition had worsened to ascertain whether the Fund’s failure to furnish the [medical] report truly prejudiced him.” 826 P.2d at 855.
The claimant’s assertion notwithstanding, Garrett is not authority for the proposition that her reliance on the first attorney constitutes equitable grounds for tolling the statute of limitations. Unlike the situation in Garrett, the actions or inactions of the claimant’s attorney are in no way attributable to the respondent. Thus, it cannot be said that the respondent is estopped from asserting the statute because it has engaged in some misconduct.
In any event, the claimant had until February 1995 to file a notice claiming compensation. She discharged the original attorney and retained a new attorney in the summer or fall of 1994. Therefore, the delay of the original attorney did not prejudice the claimant by preventing her from filing a claim for compensation prior to the running of the statute of limitations in 1995.
Neither are we persuaded that the respondent’s failure to provide medical reports constitutes grounds for equitable tolling of the statute. Assuming, arguendo, that the respondent was required to provide the claimant with the medical records, we fail to perceive how any prejudice accrued to the claimant.
Here, the ALJ determined that by February 1993 the claimant was aware of information which would lead a reasonable person to recognize the probable compensable nature of the 1989 injury. This awareness resulted from claimant’s conversations with Dr. Vostinak and her reflections on the course of her symptoms following the 1989 injury.
Here, unlike the situation in Garrett, the ALJ expressly found that the claimant acquired the requisite knowledge to file a claim for compensation prior to the running of the statute of limitations. This knowledge came to the claimant independent of the medical records. Therefore, the claimant was not prejudiced by any default on the respondent’s part, and additional findings are not necessary.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 16, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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. (1996 Cum. Supp.).
Copies of this decision were mailed July 24, 1997 to the following parties:
Deraline J. Patt, 9270 W. 104th Pl., Broomfield, CO 80021
City of Wheat Ridge, Attn: Patty Crew, 7500 W. 29th Ave., Wheat Ridge, CO 80215-6713
Judy Montoya, CIRSA, 950 S. Cherry St., No. 800, Denver, CO 80222
Gerald Dahl, Esq., City Attorney, City of Wheat Ridge, 7500 W. 29th Ave., Wheat Ridge, CO 80215-6713
Karen Burns, Esq., 745 Walnut St., Boulder, CO 80302, (For the Claimant).
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., Ste. 1300, Denver, CO 80210, (For the Respondent).
By: ________________________________