W.C. No. 4-443-162Industrial Claim Appeals Office.
April 21, 2003
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Mattoon (ALJ) which awarded temporary disability and medical benefits. The respondent contends the ALJ erred in finding the claim for benefits was not barred by the two-year statute of limitations found in §8-43-103(2), C.R.S. 2002. We affirm.
This matter was before us previously. Our order of Remand dated January 10, 2002, contains a statement of the facts, and that statement is incorporated herein. Our order held the ALJ’s prior order, dated July 10, 2001, misapplied the law because it failed to recognize that in order for a claimant to appreciate the seriousness and probable compensable nature of the injury it is necessary for the injury to be at least partially disabling so as to entitle the claimant to compensation in the form of disability benefits. Because there was no transcript and we could not determine whether the evidence might support a finding that the statute of limitations began to run before the claimant’s retirement in February 2000, we remanded for entry of a new order.
In the order after remand, dated February 13, 2002, the ALJ found that, although the claimant recognized the symptoms of the work-related respiratory disease beginning in the early 1990’s and “believed” the symptoms were causally-connected to his work as a firefighter, he did not miss any work until he retired in February 2000. Consequently, the ALJ concluded the disease did not become disabling until February 2000 and the claimant as a reasonable person did not recognize the probable compensable nature of the injury until February 2000. Therefore, the ALJ found the claim was not barred by the statute of limitations.
On review, the respondent contends that our Order of Remand, and hence the ALJ’s February 13 order, misapply the law governing the statute of limitations. The respondent contends that we have confused the “onset of disability rule” with statute of limitations law. We reject this argument.
As our prior order expressly recognized, the two-year statute of limitations does not begin to run until the claimant as a reasonable person should recognize the nature, seriousness, and probable compensable nature of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). The respondent’s assertions notwithstanding, in order for the claimant to recognize the probable “compensable nature” of an injury the injury must be of sufficient magnitude that it causes a disability which would lead a reasonable person to recognize that he may be entitled to compensation benefits. Romero v. Industrial Commission, 632 P.2d 1053 (Colo.App. 1981). The following discussion of City of Boulder v. Payne, supra, contained in Workman v. Scotsman Manufacturing, Inc., W.C. No. 4-188-889 (October 13, 1994), aff’d. Scotsman Manufacturing Inc. v. Workman, (Colo.App. No. 96CA0119, August 15, 1996) (not selected for publication), is pertinent.
The Payne court concluded that the one year statute of limitations did not bar the claim for benefits despite the fact that the claimant did not file a “notice claiming compensation” until 1965. The court held that the time for filing the “notice claiming compensation” did not begin to run until 1965, when the claimant, as a reasonable man, should have recognized the nature, seriousness and probable compensable character of his injury. In reaching this result, the Payne court stated that an “injury” is to be distinguished from an “accident” because the Workers’ Compensation Act is designed to compensate for the economic effects which flow from “disabling,” and therefore, “compensable” injuries. The court observed that, under the specific language of the statute of limitations, payment of medical benefits does not equate to payment of “compensation.”
Our Order of Remand did not hold, as the respondent asserts, that the “onset of disability” rule and the law governing the statute of limitations are identical. We did hold that the ALJ’s July 10 order failed to recognize that for the statute of limitations to commence running the claimant must have notice of information which would lead a reasonable person to believe that the injury has become disabling such that the claimant may be entitled to compensation benefits. The error in the ALJ’s first order was the conclusion that the statute of limitations began running solely because the claimant recognized symptoms which he identified as being work-related. (ALJ’s order dated July 10, 2001, Conclusion of Law 6).
The respondent has sought to distinguish the Romero case because it does not concern the statute of limitations, but instead the imposition of a penalty based on the claimant’s failure timely to report an “injury” as required by the statute currently codified at § 8-43-102(1)(a), C.R.S. 2002. While the respondent’s statement of the facts and legal issue is correct, the respondent fails to note that the Romero court relied on City of Boulder v. Payne, supra, for purposes of determining when the claimant’s duty to report the “injury” commenced. Thus, th Romero court applied statute of limitations law in defining the date of an “injury” for purposes of the penalty statute. Further, the Romero
court, after citing Payne, stated the following:
Here, during the time petitioner continued to work and to receive her regular wages, the injury was not compensable. Section 8-51-101(1)(b), C.R.S. 1973. Therefore, it was not until May 30, 1978, when the seriousness of the injury was discovered and her termination of employment was warranted, that the time for notifying her employer began to run. The referee, in his order, correctly so held.
It follows that we perceive no error in the ALJ’s order after remand. The respondent does not contest the ALJ’s findings of fact. The ALJ found the claimant did not recognize the probable compensable nature of the disease until the effects of the disease forced him to retire in February 2000. Prior to that time the claimant continued performing his regular duties. As noted in our Order of Remand, the claimant filed an application for hearing in February or March 2001, well within two years of February 2000. Under these circumstances, the ALJ correctly held the claim is not barred by the statute of limitations.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 13, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ 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. 2002. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 21, 2003 to the following parties:
William Sopp, 3750 Saints Ct., Colorado Springs, CO 80904
Andrew Martinez, City of Colorado Springs, Mail Code 630, P. O. Box 1575, Colorado Springs, CO 80901-1575
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Gregory K. Chambers, Esq., and C. Sandra Pyun, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
By: A. Hurtado