Opinion
W.C. No. 4-278-440
February 2, 1998
FINAL ORDER
The respondents seek review of orders issued by Administrative Law Judge Henk (ALJ), dated August 30, 1997 and August 13, 1997, which determined that the claim is not barred by the statute of limitations, and awarded medical benefits. We affirm.
On January 22, 1990, the claimant suffered a neck injury arising out of and in the course of his employment at Stress Con Corp. (employer). The employer referred the claimant to Dr. Villa-Balzak who diagnosed a neck sprain and released the claimant to return to his regular employment on January 23, 1990. On January 29, 1990, Dr. Villa-Balzak reported that the claimant is discharged from treatment with no permanent disability and no work restrictions.
The claimant testified that after January 29, 1990, he continued to experience neck pain but did not lose any time from work. In January 1994, the claimant injured his neck during a trampoline accident, and sought treatment from Dr. Young. Dr. Young obtained x-rays and an MRI which revealed a ruptured cervical disk and a narrowing of the disc space at C5-6. Dr. Young opined the narrowing predated the trampoline accident, and that it was "extremely unlikely" that the narrowing was related to the trampoline accident. Dr. Young also noted that the industrial injury was the claimant's only neck injury before the onset of chronic neck pain. Therefore, Dr. Young opined that the ruptured disc and the claimant's need for further medical treatment are the result of the 1990 industrial accident.
On December 20, 1995, the claimant filed a claim seeking workers' compensation benefits in connection with his neck problems. The respondents denied liability, and asserted that the claim is barred by the statute of limitations.
Insofar as pertinent, the ALJ determined that the herniated disk was either undiagnosed in 1990 or symptomatically worsened to the point that the claimant required medical intervention in 1994. Therefore, the ALJ found that the proximate cause of the ruptured cervical disk was the 1990 industrial injury.
The ALJ also found that the claimant did not recognize the nature and seriousness of his condition until February 1994 when Dr. Young diagnosed the herniated cervical disk. Therefore, the ALJ determined that the statute of limitations began in 1994 and that the claim was filed within the two-year period provided under § 8-43-103(2), C.R.S. 1997. Consequently, the ALJ concluded that the claim was timely filed, and awarded medical benefits.
I.
On review, the respondents contend that the record does not contain substantial evidence to support the ALJ's finding of a causal connection between the 1990 injury and the claimant's ongoing neck problems. The respondents contend that the "sole" evidence supporting the ALJ's findings are the opinions of Dr. Young. Further, the respondents contend that Dr. Young's opinions are dependent on the claimant's testimony of "chronic neck pain," which is refuted by substantial evidence to the contrary. Therefore, the respondents argue that the ALJ erred in crediting Dr. Young's opinions about the cause of the herniated cervical disk. We reject this argument.
Admittedly, the record contains some evidence which, if credited, might support a contrary result. However, the ALJ found the claimant's testimony wholly credible and we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses and the probative value of the evidence. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Therefore, the existence of contrary evidence does not afford us grounds to grant appellate relief. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Furthermore, the claimant's testimony is alone sufficient to support the ALJ's finding that the claimant's ongoing neck problems are causally related to the 1990 injury. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983) (medical evidence not required to establish causation). The claimant testified that he had no neck injuries before the industrial injury but has had constant neck pain since the industrial injury. (Tr. pp. 9, 11). He also stated that he did not experience any injury to his neck after 1990 except for the trampoline accident which prompted him to see Dr. Young. (Tr. p. 19-21).
Moreover, the claimant's testimony is consistent with Dr. Young's interpretation of the 1994 diagnostic studies, and together this evidence supports the ALJ's resolution of the causation issue. Therefore, we cannot say that the ALJ erred in crediting Dr. Young's opinions concerning the cause of the claimant's herniated cervical disk. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ credibility determinations binding unless the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony).
II.
Next, the respondents contend that the claimant is barred from receiving additional benefits because under § 8-41-206, C.R.S. 1997, "any disability beginning more than five years after the date of injury shall be conclusively presumed not to be due to the injury." The respondents contend that the claimant had no "disability" in January 1990 and therefore, the claimant's 1995 disability is conclusively not related to the 1990 injury. We disagree.
Initially, we note that § 8-41-206 is a rule of evidence, not a statute of limitations. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991). Section 8-41-206 precludes the ALJ from finding a causal connection between an injury and a "disability" when the "disability" does not begin within five years of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).
However, for purposes of § 8-41-206, the term "disability" is not limited to disabilities which entitle the claimant to temporary disability benefits. For example, in City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967), the court found that the claimant suffered the beginning of a disability where the industrial injury precluded him from working for five days, even though that period of lost time from work was insufficient to award temporary disability benefits under the applicable law.
Furthermore, in Ricks v. Industrial Claim Appeals Office, supra, the court concluded that a claimant may suffer the "beginning" of a disability if the industrial injury precludes the claimant from returning to work except in a restricted capacity. The Ricks court reasoned that this construction does not penalize a worker for returning to work and resuming productivity even when the "full extent of the injury is undiagnosed until five years later." 809 P.2d at 1120.
Here, the claimant stated that he lost one-half day of work after the injury. (Tr. pp. 10, 16). Because an injury which restricts a claimant to modified employment may constitute the "beginning" of a disability for purposes of § 8-41-206, then evidence that the claimant lost some time from work as a result of the injury is certainly sufficient to constitute the beginning of a disability. Accordingly, the ALJ could reasonably infer that § 8-41-206 is not applicable because the beginning of the "disability" occurred within 5 years of the injury.
III.
Nevertheless, the respondents contend that if the claimant experienced the beginning of a "disability" in 1990, then the statute of limitations began in 1990. Therefore, they argue that the 1995 claim was not timely filed, and the claim is barred. We disagree.
Colorado follows 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). The "nature of the injury" reflects the necessity that the claimant appreciate the general, though not necessarily the precise diagnosis. Under this standard the claimant's awareness of pain associated with an industrial injury does not necessarily trigger the statute of limitations. Intermountain Rubber Industries, Inc. v. Valdez, 688 P.2d 1133 (Colo.App. 1984). To recognize the "seriousness" of the injury, the claimant must appreciate the likely consequences of the injury, which encompasses the idea that the injury be "to some degree disabling." Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981).
In this case, the ALJ found that the claimant was not aware of the "nature" of the injury until 1994. The ALJ's finding is supported by the evidence that Dr. Young was the first physician to notify the claimant that he had a herniated cervical disc. Thus, regardless of whether the claimant recognized the "seriousness" of his injury in 1990, the statute of limitations was not triggered until 1994 when the claimant discovered the "nature" of his injury.
It follows that we agree with the ALJ's assertion that this case is factually indistinguishable from the circumstances presented in Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo.App. 1984). In Valdez the claimant suffered a work-related back injury in 1976. The employer filed a first report of injury and provided medical treatment. However, the treating physician did not diagnose any disc or musculoskeletal disorder and gave the claimant no indication that the injury predisposed him to more serious back injuries. In 1980 the claimant suffered a new back injury and was diagnosed with a herniated disc. In the opinion of the treating physician, the 1976 injury created a predisposition for the 1980 disc herniation. Under these circumstances, it was determined that the claimant did not know the nature, seriousness, or compensable character of his injury until he received the 1980 diagnosis of a herniated disk. Therefore, the court held that the statute of limitations for the 1976 injury did not begin until 1980.
The respondents' remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's orders dated August 30, 1997 and August 13, 1997, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Bill WhitacreNOTICE
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed February 2, 1998 to the following parties:
Randy Brown, 718 Henry, Pueblo, CO 81005
Stress Con Corporation, P. O. Box 15129, Colorado Springs, CO 80935-5129
Curt Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO 81003 (For the Claimant)
David L. Smith, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
BY: ________________________________