W.C. No. 4-428-933Industrial Claim Appeals Office.
May 17, 2001
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which determined the claim is barred by the statute of limitations and, therefore, denied and dismissed the claim. We affirm.
The claimant worked for the respondent between 1986 and 1996. The ALJ found that in 1986 the claimant was diagnosed with a cumulative trauma disorder and medically restricted from performing her regular employment for one week. The ALJ found that the condition eventually resolved but that it became symptomatic again in 1995 and 1996. As a result, the claimant voluntarily quit the employment in April 1996. The claimant was rehired in September 1996, but quit in November 1996 when her symptoms physically precluded her from performing her assigned work. However, the ALJ found the claimant did not share the reason for her resignation with the respondent.
On July 23, 1999, the claimant filed a Workers’ Compensation claim which alleged an injury on October 1, 1989. The respondent filed an Employer’s First Report of Injury on August 13, 1999, and asserted the claim is barred by the statute of limitations.
The ALJ found the statute of limitations began no later than April 1996. Therefore, the ALJ determined the July 23, 1999 claim was not timely filed. The ALJ also found the claimant failed to prove a reasonable excuse for failing to file a claim within three years or that the statute of limitations was tolled. In support, the ALJ found the respondent did not have notice the injury resulted in lost time from work or permanent disability until receipt of the claim for workers’ compensation. Therefore, the ALJ was not persuaded the statute of limitations was tolled by the respondent’s failure to file a First Report of Injury until 1999. Consequently, the ALJ determined the claim was barred. The claimant timely appealed.
The claimant’s Petition to Review contains general allegations of error under § 8-43-301(8), C.R.S. 2000. The claimant also contends the ALJ erroneously failed to determine the statute of limitations was tolled. Further, the claimant contends the statute of limitations did not begin until June 7, 1999, when she knew she sustained permanent impairment from the injury. We reject these arguments.
I.
Section 8-43-103(2), C.R.S. 2000 provides that the right to workers’ compensation is barred unless a formal claim is filed within two years of the injury. The statute of limitations does not begin 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). For purposes of the statute of limitations, a “compensable” injury is one which is disabling, and entitles the claimant to compensation in the form of disability benefits. City of Boulder v. Payne, supra; Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981). Therefore, to recognize the “probable compensable character” of an injury, the claimant must appreciate a causal relationship between the employment and the condition. The claimant must also know that the injury is disabling and may entitle her to disability benefits
The determination of when the claimant knew or should have known as a reasonable person the probable compensable character of the injury is a question of fact for resolution by the ALJ. Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
The claimant has not provided a transcript of the hearings on June 28 and October 23, 2000. See § 8-43-301(2), C.R.S. 2000 (petitioner shall arrange with the hearing reporter for the preparation and payment of the hearing transcript). Because the hearing transcripts are not part of the appellate record, we must presume the ALJ’s findings are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Therefore, we may not disturb the ALJ’s finding that the claimant knew or should have known the nature, seriousness and probable compensable nature of her injury in 1996.
II.
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 [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 statutory reporting requirements refer to the requirements of § 8-43-101, C.R.S. 2000. See Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987). The relevant portion of that statute 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 shall, in writing, upon forms prescribed by the division for that purpose, report said occupational disease disability, permanently physically impairing injury, lost- time injury, or fatality to the division.” (Emphasis added).
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).
Here, the ALJ implicitly found the claimant was alleging an injury in the nature of an occupational disease. CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982) (the term “injury” encompasses both accidental injuries and occupational diseases). This is true because where an “injury” is acquired in the ordinary course of employment and is a natural incident of the employment, the claimant has sustained an “occupational disease.” Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991).
In the case of an occupational disease, the employer’s duty to file a first report in the case of a nonfatality, arises when the claimant sustains lost-time, or a permanent disability. Wesley v. Department of Institutions, W.C. No. 3-971-835 (May 28, 1993). In contrast, subsection (2) provides that injuries which do not involve the kind of disability described in subsection (1) need only be reported the employer’s insurer.
For the reasons stated above, we may not disturb the ALJ’s findings that the respondent did not have knowledge the claimant lost more than three days of work or suffered permanent disability until 1999. See Nova v. Industrial Claim Appeals Office, supra. Moreover, the ALJ’s findings support the conclusion the statute of limitations was not tolled by the respondent’s failure to file a First Report of Injury prior to 1999.
The claimant’s remaining factual assertions do not afford us a basis to grant appellate relief. Section 8-43-301(8).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 21, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 17, 2001 to the following parties:
Belinda L. Sanchez, 940 Columbine Ave., Colorado Springs, CO 80904
Western Forge Corp., 4607 Forge Rd., Colorado Springs, CO 80907-3517
Brenda Hickey, Crawford Company, P. O. Box 6502, Englewood, CO 80155-6502
Brice Berkelend, Crawford Company, 4570 Hilton Pkwy., #202, Colorado Springs, CO 80907
Carol A. Finley, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)
BY: A. Pendroy