Opinion
W.C. Nos. 4-221-615, 4-219-452
July 28, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) insofar as it determined that the claim is not barred by the two year statute of limitations currently codified at § 8-43-103(2), C.R.S. (1994 Cum. Supp.). We affirm.
The ALJ found that the claimant sustained an occupational disease during her employment with the Storage Technology Corporation (employer). The ALJ found that the claimant developed problems with her upper extremities in May 1990 and reported the condition to the employer, who referred the claimant for medical treatment. The attending physician prescribed wrist splints and physical therapy, which the claimant attended during her regular working hours for two to three months. During this period, the claimant was paid her regular wages. The claimant also experienced difficulty performing her job as a result of the disease. Therefore, the ALJ determined that the claimant suffered the "onset of disability" from the disease in May 1990.
The claimant testified that she got to the point that her pain was less severe and was at a level she thought she could live with, and therefore, physical therapy was discontinued. Tr. p. 60. The ALJ found that the claimant's "symptoms waxed and waned in intensity over the years, depending on what she was doing with her hands, but her symptoms never went away completely." The ALJ also found that until July 1994, the claimant wore splints at night and whenever she was doing something strenuous for this employer.
In July 1994, the claimant underwent surgical treatment for the disease. The claimant did not receive her regular wages in connection with the lost time from work following the surgery, and in August 1994, she filed a claim for workers' compensation.
The ALJ determined that the claimant, as a reasonable person, did not recognize the probable compensable nature of her injuries until she began missing time from work without pay in July 1994. Consequently, the ALJ concluded that the August 1994 claim is not barred by the statute of limitations.
On appeal, the respondents do not dispute the ALJ's determination that the claimant suffered the "onset of disability" in May 1990. Instead, the respondents contend that the ALJ erroneously applied a different definition of the term "disability" for purposes of the statute of limitations. We perceive no error.
As the respondents acknowledge, an injury does not occur for purposes of the statute of limitations until the claimant "as a reasonable person should recognize the nature, seriousness and probable compensable character of" their injury. Crest Fence Co. v. Cec, 175 Colo. 21, 485 P.2d 709 (1971); City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). A "compensable" injury, for purposes of the statute of limitations, is one which is disabling, and entitles the claimant to compensation in the form of disability benefits. See section § 8-43-103(2) ("medical benefits" do not constitute compensation for purposes of the statute of limitations); see also 8-42-103(1)(a), C.R.S. (1994 Cum. Supp.) (temporary disability benefits payable if the claimant has been disabled from work longer than three days) ; City of Boulder v. Payne, 426 P.2d at 197; Romero v. Industrial Claim Appeals Office, 632 P.2d 1052 (1981).
Where the claimant's injury is in the nature of an occupational disease, the rights and liabilities of the parties are governed by the law in effect at the "onset of disability," and the disease is not compensable injury unless it causes disability. Crest Fence Co. v. Cec, 175 Colo. 21, 485 P.2d 709 (1971) (term "injury" includes both industrial accidents and occupational diseases); Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 220 (Colo.App. 1994); Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). However, an occupational disease may cause "disability" which does not entitle the claimant to disability benefits. Specifically, a claimant suffers the "onset of disability" when the occupational disease impairs the claimant's ability to effectively and properly perform her regular employment, or the claimant is only capable of returning to work in a restricted capacity. Ricks v. Industrial Claim Appeals Office, 809 P.2d 1118 (Colo.App. 1991) ; Jefferson County Schools v. Headrick, 734 P.2d 659 (Colo. App 1986); Romero v. Standard Metals Corp., 29 Colo. App. 455, 485 P.2d 927 (1971).
Because, a claimant may suffer an "onset of disability" without suffering lost time from work which is compensable under § 8-42-103(1)(a), the meaning of the word "disability" in the context of the statute of limitations is not identical to its meaning in the context of the "onset of disability." Accordingly, the ALJ did not err insofar as she applied two distinct definitions. Cf. Subsequent Injury Fund v. Industrial Claim Appeals Office, 899 P.2d 271 (Colo.App. 1994) cert. denied July 24, 1995 (date when claim "accrues" for purposes of statute of limitations may be later than date on which claimant incurs compensable disability).
The respondents also argue that the ALJ's finding that the claimant did not recognize the probable compensable nature of the injury until she began losing time from work in July 1994 is inconsistent with her finding that the claimant lost time from work in 1990. We disagree.
The determination of when the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensability of her injury is a question of fact to be resolved by the ALJ based upon the record. City of Boulder v. Payne, supra; Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo.App. 1984). Consequently, we must uphold the ALJ's determination if supported by substantial evidence and the ALJ's plausible inferences from the record. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The respondents do not contest the ALJ's findings that the employer continued to pay the claimant's regular wages when she lost time from work to attend physical therapy in 1990, and did not pay the claimant's regular earnings after her surgery in July 1994. Furthermore, these findings, together with ALJ's factual determination that the claimant's condition did not require surgery until 1994, support the ALJ's inference that a reasonable person would not consider their injury to be serious, or "compensable" until the surgery and lost time from work in July 1994. The ALJ's inference is buttressed by the ALJ's finding that, until 1994, the respondents treated the claimant's injury as "medical only" claim, and the fact that neither counsel recognized the potential significance of the claimant's 1990 lost time until the January 1995 hearing before the ALJ. Tr. pp. 16, 36-37.
Under these circumstances, we must uphold the ALJ's determination that the statute of limitations did not begin in run until 1994. Therefore, the ALJ did not err in concluding that the claim was filed within the time provided by the statute of limitations. City of Boulder v. Payne, supra.
Insofar as the respondents contend that this matter is factually distinguishable from the applicable caselaw, including City of Boulder v. Payne, supra, we disagree. To the contrary, these facts are very similar to the circumstances in Romero v. Industrial Commission, supra. The claimant in Romero suffered a 1977 industrial back injury, but continued to work, and did not report the injury because she did not believe it was serious. However, the claimant's pain gradually increased and prompted her to seek medical treatment in May 1978. At that time, the claimant was diagnosed with a serious back injury which, in the physician's opinion, permanently precluded the claimant from returning to work. The Romero court concluded that the injury was not compensable during the time the claimant continued to work and receive her regular wages, and that the claimant did not discover the seriousness of her injury until the 1978 diagnosis which precipitated her termination from employment. Therefore, the Romero court declined to impose penalties for the claimant's failure to report the injury to the employer prior to May 1978.
IT IS THEREFORE ORDERED that the ALJ's order dated February 21, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. (1994 Cum. Supp.).
Copies of this decision were mailed July 28, 1995 to the following parties:
Gayle L. Correll, 11673 Logan, Northglenn, CO 80233
Storage Technology Corp., Attn: Cheryl Schut, 2270 S. 88th St., Louisville, CO 80028
St. Paul Fire Marine Ins. Co., Attn: Kathy Redmond, P.O. Box 441565, Aurora, CO 80044-1565
John A. Steninger, Esq., 1199 Bannock St., Denver, CO 80204 (For the Claimant)
Michael J. Barbo, Esq., 12250 E. Illiff Ave., Ste. 308, Aurora, CO 80014-1253 (For the Respondents)
BY: _______________________