Opinion
W.C. No. 4-737-182.
March 4, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated September 26, 2008 that denied his claim on the basis that it was untimely. We affirm.
This matter proceeded to hearing on whether the claimant sustained a compensable injury, whether the respondents were subject to penalties for not reporting the claimant's injury to the Division of Workers' Compensation, and whether the claim was time-barred by application of a statute of limitations. The claimant testified that on January 24, 2002 he fell about 25 feet when trusses collapsed while building a pole barn. Tr. at 11, 13. He was treated by Dr. Milliken on January 29 and understood his lower spine to be fractured. Tr. at 17. He testified that he worked for the employer from Monday through Saturday. Tr. at 16. After his fall on a Thursday, the claimant stated that he did not work the following Friday, Saturday, or Monday. Tr. at 15-16. He saw Dr. Milliken the following Tuesday and stated that he did not return to work until the next Thursday, which was January 31. Tr. at 16-17. The claimant later admitted that the form completed for his workers' compensation claim indicates that he notified the employer of the accident on January 24, 2002 and returned to work on January 27, 2002. Tr. at 32; Exhibit C. However, the claimant reiterated that he returned to work on January 31. Tr. at 32.
The claimant argued in his position statement that the respondents had a duty to report his injury to the Division. In support of his contention, the claimant asserted that he missed more than three days of work and that the respondents were on notice that three or more employees sustained injuries on the day of his accident. He further asserted that he sustained a permanent impairment due to a probable lumbar compression fracture diagnosed near the time of his accident. Thus, the claimant maintained that the respondents were on notice at or near the time of his accident that he had a compensable injury. Moreover, it is apparent from the record that the claimant consistently maintained before the ALJ that the running of the statute of limitations was tolled. The claimant has not argued that the statute of limitations never commenced to run in this case. It therefore appears that the claimant effectively concedes that the respondents made a prima facie showing that his claim is time-barred absent the tolling of the applicable statute of limitations. See Hansen v. Lederman, 759 P.2d 810 (Colo.App. 1988) (plaintiff bears burden to prove tolling after prima facie showing claim brought outside statute of limitations). The ALJ rejected the claimant's assertions and denied his claim.
The ALJ's findings of fact are summarized as follows. The claimant worked as a laborer building barns and sustained injuries on January 24, 2002 when part of a barn collapsed. Dr. Olsen treated the claimant the same day and diagnosed low back pain and a left ankle sprain. The employer faxed its first report of injury to the insurer on January 28, 2002, indicating that the claimant bruised his back on January 24, 2002, was treated and released, and returned to work on January 29, 2002. The fax cover sheet accompanying the employer's report indicated that "5 people were hurt with 3 being treated and released." The claimant failed to appear at a follow-up appointment on January 28, 2002, but was seen the next day by Dr. Milliken. Dr. Milliken released the claimant to return to work without restrictions. He did not expect that an impairment rating was needed and thought the case should close within the next couple of weeks. Dr. Milliken discharged the claimant from his care on March 15, 2002 on the basis that the claimant failed to appear for three appointments. The ALJ was not persuaded that the claimant sought treatment for back pain from January 24, 2002 until February 7, 2007, when his attorney referred him to a physician for an evaluation. On October 2, 2007 the claimant filed a claim for injuries to his lumbar spine and left ankle due to the incident on January 24, 2002.
The ALJ found that the employer's first report of injury indicated that the claimant missed only two days of work and sustained no permanent disability. The ALJ also found that the information conveyed by the employer's first report of injury and corresponding fax cover sheet did not reasonably apprise the insurer that it was required to report the claimant's accident to the Division, thus rejecting the claimant's assertion that his obligation to file the claim timely was tolled due to the insurer's failure to file the employer's report with the Division. The ALJ therefore concluded that the claim was barred by operation of the applicable statute of limitations. Having determined that the claimant failed to timely file a claim, the ALJ did not reach the issues of whether the claimant sustained a compensable injury or whether the respondents were subject to penalties for not reporting the claimant's injury to the Division.
I. Applicable statutory provisions
Section 8-43-103(2), C.R.S. 2008, states that a claim is barred unless a notice claiming compensation is filed within two years (three years in the case of "excusable neglect") of the injury. Section 8-43-103(2) further states as follows:
[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 [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.
This language was in effect at the time of the claimant's accident. Colo. Sess. Laws 1994, ch. 309, § 8-43-103(2) at 1873-74 (subsequently amended, Colo. Sess. Laws 2005, ch. 228 at 854). See generally Meyring Livestock Co. v. Wamsley Cattel Co., 687 P.2d 955, 960 (Colo. 1984) (statutes of limitations generally applied prospectively absent clear legislative expression to contrary); see also, State Highway Dep't v. Stunkard, 115 Colo. 358, 174 P.2d 346 (1946) (applicable statute of limitations not applied retroactively).
The employer's duty to "report said injury" to the Division refers to the employer's statutory duties under § 8-43-101, C.R.S. 2008. Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987). Section 8-43-101(1), requires that "[w]ithin ten days after . . . 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).
It is the claimant's burden to prove when the employer had sufficient knowledge to trigger the duties required by § 8-43-101(1). See 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 two years of the injury. Procopio v. Army Navy Surplus, W. C. No. 4-465-076 (June 10, 2005).
The question of whether the employer was placed on notice sufficient to trigger its reporting duties is largely one of fact. Wallace v. Stone Gate Homes, W. C. No. 4-650-504 (April 18, 2006); Doughty v. Poudre Valley Health, W. C. No. 4-488-749 (January 13, 2003). Hence, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Against this background, we consider the claimant's arguments in support of his contention that the statute of limitations was tolled in this case.
II. Claimant's arguments
The claimant maintains on appeal, as he did before the ALJ, that the respondents' failure to notify the Division of his injury tolled the running of the statute of limitations. The claimant therefore argues that under § 8-43-101(1), the employer had an obligation to notify the Division about his accident. The claimant advances three different bases for his contention.
The claimant argues that he had a "lost-time injury" of more than three days of work and that, therefore, the employer had a statutory obligation to report his injury to the Division. The claimant refers to his testimony at the hearing that could support a finding to the effect that he lost more than three days of work due to the accident. Although there is evidence in the record that might support a contrary finding, such evidence affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The ALJ's finding that the claimant did not, in fact, lose more than three days from work is supported by the employer's completed first report of injury, as well as the insurance adjuster's testimony, both of which the ALJ credited. Tr. at 42, 44, 56; Exhibit 8 at 15.
The claimant asserts that the respondents were advised that he had sustained a permanent impairment according to Dr. Milliken's report, which the claimant describes as indicating a probable lumbar compression fracture. We note that Dr. Milliken issued a report dated January 29, 2002, discussing the claimant's x-ray films as follows: "The films were all within normal limits with the exception of a possible compressed vertebral body at L1. Otherwise, there was no evidence of a fracture." Exhibit 11 at 35. The claimant also refers to testimony from the respondent insurer's adjuster that she knew the claimant had sustained a compression fracture. The transcript of the adjuster's testimony indicates that she was aware that Dr. Milliken mentioned the possibility of a fracture in the claimant's back, but that he did not opine as to whether the condition was old or new. Tr. at 50-52. Rather than make the evidentiary inferences sought by the claimant, the ALJ credited Dr. Milliken's release of the claimant to work without restriction. Findings of Fact, Conclusions of Law, and Order (Order) at 2, ¶ 3. As noted above, Dr. Milliken's written discussion of the claimant's x-rays indicates that the films appeared normal "with the exception of a possible compressed vertebral body at L1"and includes a reference to the claimant's condition as being "suspicious for a work-related L1 compression fracture." (Emphasis added.) We do not consider these speculative statements as to the claimant's medical condition to constitute "hard, certain evidence" to the contrary that would overwhelmingly rebut the ALJ's findings to the contrary. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Cf Grant v. Industrial Claim Appeals Office, 740 P.2d 530, 531 (Colo.App. 1987) (employer not placed on dispositive notice by physician's diagnosis of damaged knee where portion of report concerning permanent disability left blank). Instead, the ALJ's findings that the claimant neither lost more than three days work or sustained any permanent disability are supported by the record and binding on review.
The claimant also argues that the respondents were effectively placed on notice by the coversheet accompanying the employer's facsimile transmission to the insurer that three more workers sustained injuries, thereby triggering a statutory obligation to report the claimant's accident to the Division. See § 8-43-103(1), C.R.S. 2008 (requiring notice of injury to Director of Division when three or more employees injured in any accident). The claimant asserts that the fax cover sheet accompanying the employer's first report of injury to the insurer reasonably apprised the insurer that it had an obligation to report the claimant's accident to the Division. As found by the ALJ, the employer faxed its first report of injury to the insurer on January 28, 2002. The report indicated that the claimant had sustained a "bruised lower part of back (treated and released)" on January 24, 2002. The report further indicated that the claimant could return to work on January 29, 2002. The cover sheet accompanying the report includes the following statements:
Here are the reports Herb Phelps requested that I fax you. This accident happened on 1-24-02 when the trusses on a post frame bldg. fell. A total of 5 people were hurt with 3 being treated and released. Any questions please call. . . .
Exhibit 8 at 14 (emphasis added). According to the claimant, the emphasized language in the cover sheet effectively placed the insurer on notice that the claimant's accident should have been reported to the Division. The ALJ, on the other hand, found that the recitation cited above had "no indication that 3 or more employees were disabled for 3 or more days" and, therefore, did not reasonably notify the respondents that the Division needed notification of the accident. Order at 3, ¶ 10.
The claimant asserts that the ALJ erred by imposing a requirement that the workers sustain compensable injuries for the purposes of determining whether the respondents had an obligation to report to the Division "any accident in which three or more employees are injured" pursuant to § 8-43-103(1). The claimant argues that the statutory definition of the term "injury" contained in § 8-40-201(2), C.R.S. 2008 imposes no requirement that the injury be compensable under the Workers' Compensation Act. Section 8-40-201(2) states that "injury . . . includes disability or death resulting from accident. . . ." We agree with the ALJ that under the circumstances the employer was only required to give notice to the Division of an injury for which compensation and benefits is payable. We note that § 8-43-103(1) expressly refers to giving "[n]otice of an injury, for which compensation and benefits are payable . . . "See City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640, 642 (Colo.App. 1998) (reciting same statutory language and upholding tolling of statute of limitations due to employer's failure to report lost-time injury).
In addition, we have reviewed the fax cover sheet and cannot state that the ALJ was compelled to construe the employer's note to the insurer as tolling the statute of limitations. The scope of the cover sheet as it relates to the running of the statute of limitations is in the nature of a factual question, and we defer to the ALJ's reasonable inferences. See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951).
We find no reversible error in the ALJ's determination that the claimant failed to timely file his claim is not contrary to the law and decline to disturb the ALJ's order denying and dismissing the claim. See § 8-43-301(8), C.R.S. 2008 (Panel may not disturb order if findings supported by substantial evidence and denial of benefits supported by applicable law).
IT IS THEREFORE ORDERED that the ALJ's order dated September 26, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Thomas Schrant
CHRIS GILLESPIE, LOVELAND, CO, (Claimant).
DMD CONSTRUCTION, FT COLLINS, CO, (Employer).
MID-CENTURY INSURANCE COMPANY, Attn: LISA WATKINS, C/O: FARMER'S INSURANCE EXCHANGE, DENVER, CO, (Insurer).
RING ASSOCIATES, Attn: JESS M PEREZ, ESQ., FORT COLLINS, CO, (For Claimant).
JOEL N VARNELL ASSOCIATES, Attn: JOE ESPINOZA, ESQ., DENVER, CO, (For Respondents).