W.C. No. 4-465-076.Industrial Claim Appeals Office.
June 10, 2005.
FINAL ORDER
The claimant pro se seeks review of an order of Administrative Law Judge Jones (ALJ) which determined the claim is barred by the 2 year statute of limitations in § 8-43-103(2), C.R.S. 2005, and therefore, dismissed the claim for workers’ compensation insurance. We affirm.
On June 26, 2000, the claimant filed a formal claim for workers-compensation which alleged an accidental injury on May 29, 1996. The ALJ determined the claimant failed to establish an excuse for failing to file the claim within 2 years of May 29, 1996. Further, the ALJ was not persuaded the statute of limitations was tolled by the employer’s failure to comply with § 8-43-101(1), prior to June 2000. Therefore, the ALJ determined the claim is barred by the statute of limitations.
On review the claimant lists numerous “objections” concerning the procedural history of the claim. The respondents contend the “objections” were not raised before the ALJ and, therefore, argues they were waived. We agree.
Rule of Procedure VIII(I)(4), 7 Code Colo. Reg. 1101-3 at 30, provides that “copies of interlocutory orders previously issued in the case that a party intends to raise on appeal shall be filed and identified at the formal hearing.” We are unable to locate any evidence the claimant complied with Rule VIII(I)(4) or that the claimant otherwise raised the “objections” before the ALJ. Therefore, we agree with the respondents that the claimant failed to preserve the issues for our review.
Next, the claimant contends the ALJ erroneously failed to find the statute of limitations was tolled. We disagree.
Section 8-43-103(2), C.R.S. 2004 provides that the right to workers’ compensation is barred unless a formal claim is filed within 2 years of the injury. The statute of limitations begins when 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).
Section 8-43-103(2) further states that
“[I]n all cases in which the employer has been given notice of an injury and fails, neglects, or refuses to report said injury to the division as required by the provisions of said articles [the Workers’ Compensation Act], this statute of limitations shall not begin to run against the claim of the injured employee . . . until the required report has been filed with the division.”
The employer’s duty to “report said injury” to the division refers to the employer’s statutory duties under § 8-43-101. Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987). Section 8-43-101(1), requires that “within ten days after notice or knowledge that an employee has contracted an occupational disease, or the occurrence of a permanently physically impairing injury, or lost-time injury to an employee,” the employer must report the injury to the Division. A “lost time injury” is defined as one which causes the claimant to miss more than three work shifts or three calendar days of work. Grant v. Industrial Claim Appeals Office, supra. An employer is deemed to have “notice” of an injury when the employer has “some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.” Jones v. Adolph Coors Co. 689 P.2d 681, 684 (Colo.App. 1984).
Contrary to the claimant’s contention, it was her burden not the burden of the respondents to prove when the employer had sufficient knowledge to trigger the duties required by § 8-43-101(1). City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo.App. 2002) (burden of proof rests upon the party asserting the affirmative of a proposition). This is true because the tolling provisions create an exception to the claimant’s duty to file a claim within 2 years of the injury.
Here, the claimant testified that one of the employer’s managers took the claimant to a doctor when she suddenly became ill. (Tr. pp. 48, 52) However, that testimony alone does not necessarily establish the manager had sufficient knowledge to believe the “sudden illness” was the result of an occupational disease, that the claimant was disabled for more than 3 work shifts or that the claimant suffered permanent impairment.
Contrary to the claimant’s further argument, the respondents’ First Report of Injury dated June 11, 2000, does not list a date when the injury became disabling. (Respondents’ Hearing Exhibit B). Thus, the remark in the report that states the claimant is “still out” and has not returned to work, does not compel a finding the respondent knew or should have known between May 1996 and May 1998 that the claimant suffered a disabling injury. Under these circumstances, the ALJ reasonably found the claimant failed to prove the statute of limitations was tolled by the respondents’ failure to file a First Report of Injury prior to June 2000.
Alternatively, the claimant relies on James v. Brookhard Lumber Co., 727 P.2d 1119 (Colo.App. 1986), to argue that because she was a person under a disability and no legal representative was appointed, the statute of limitations was tolled. However, the claimant did not raise this argument before the ALJ. Therefore, we shall not consider it for the first time on appeal. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997) (specific argument must be raised before ALJ to be considered on appeal); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194
(Colo.App. 1995).
We have reviewed the claimant’s additional arguments and they do not alter our conclusions. The claimant’s reliance on Miller v. Industrial Claim Appeals Office, 985 P.2d 94 (Colo.App. 1999), is also misplaced Miller concerns the 5 year statute of limitations for occupational diseases resulting from exposure to radioactive materials. Thus, the statute is not relevant to the claimant’s industrial accident from exposure to permanent ink.
The claimant also incorrectly cites Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999), in support of her contention that she is entitled to medical benefits regardless of the date of injury. Wal-Mart holds that where the claimant suffers an injury in the nature of an occupational disease, the claimant is entitled to compensable medical benefits even if the claimant has not suffered a disability which would trigger the claimant’s entitlement to indemnity benefits. However, nothing in Wal-Mart entitles the claimant to medical benefits where the injury claim is barred by the statute of limitations.
Finally, we note the respondents’ motion to strike the claimant’s Reply Brief in Support of the Petition to Review. Although most of the Reply Brief concerns issues irrelevant to whether the claim is barred by the statute of limitations, the Reply Brief is of some assistance in understanding the pro se claimant’s appellate arguments. Therefore, we deny the respondents’ motion to strike and have considered the claimant’s Reply Brief.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 12, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ Kathy E. Dean
___________________ Robert M. Socolofsky
Kathy Procopio, Denver, CO, Steve Finer, Army Navy Surplus, Englewood, CO, Legal Department, Pinnacol Assurance — Interagency Mail Margaret A. Neilsen, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondents).