Opinion
W.C. No. 4-367-958
October 29, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Snider (ALJ) which denied and dismissed the claim for workers' compensation benefits on grounds the claim is barred by the statute of limitations. We affirm.
From 1993 to October 1995, the claimant worked as an assembler at Lifecare Services, Inc. (Lifecare), which resulted in exposure to methylene chloride. In 1995 the claimant developed symptoms of dizziness and nausea, vomiting and a nasal drip. The claimant sought medical treatment on her own and was diagnosed with an upper respiratory infection unrelated to employment. The claimant was discharged from the employment in October 1995 due to excessive absenteeism.
On October 14, 1996, the claimant was diagnosed with asthma, which Dr. Mason attributed to the chemical exposure at Lifecare. On January 26, 1998, the claimant filed a claim for workers' compensation benefits which alleged an occupational disease from a hazardous exposure to chemicals at Lifecare.
Section 8-43-103(2), C.R.S. 1999, provides that a claim for workers' compensation is barred unless a claim is filed within two years of the injury. The statute of limitations does not commence 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). However, the two year statute of limitations does not apply if it is established:
"to the satisfaction of the director within three years after the injury or death that a reasonable excuse exists for the failure to file such notice claiming compensation and if the employer's rights have not been prejudiced thereby."
The claimant bears the burden of showing that a reasonable excuse exists. If the claimant proves a reasonable excuse, the burden shifts to the respondents to prove prejudice from the late filing. Colorado Fuel Iron Corp. v. Industrial Commission, 129 Colo. 287, 269 P.2d 696 (1954).
The ALJ found the claimant should have recognized the nature, seriousness, and probable character of her illness by October 1995, because she did not have similar symptoms prior to employment at Lifecare, she believed co-workers suffered similar symptoms from the chemical exposure and she was discharged due to excessive absenteeism from the symptoms she attributed to the chemical exposure at Lifecare. In so doing, the ALJ rejected the claimant's contention that she could not have recognized the probable compensable nature of her illness until she was diagnosed with asthma. Furthermore, the ALJ determined the claimant failed to present a reasonable excuse for not filing a claim before January 1998. Therefore, the ALJ determined the January 1998 claim is untimely and the claim is barred by the statute of limitations.
I.
The claimant contends that where, as here, none of the treating physicians attributed her symptoms to her employment until October 1996, the ALJ erroneously determined she should have recognized the probable compensable character of her illness in October 1995. The claimant also contends the ALJ's determination is inconsistent with the holding in Russell Stover Candy Co., v. Turchanyi, 474 P.2d 625 (Colo.App. 1970) (not selected for publication). We disagree.
The "probable compensable character" of the injury refers to the claimant's awareness of the causal relationship between the injury and the employment. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). We have previously held that the absence of a medical opinion which suggests a causal relationship between the claimant's medical problems and employment may support a finding that the claimant lacked the requisite knowledge to trigger the running of the statute of limitations. Lucero v. Jackson Ice Cream, W.C. No. 4-170-105 (January 6, 1995); Wise v. Rockwell International Corp., W.C. No. 4-023-871 (September 20, 1993); Ramirez v. Monfort, Inc., W.C. No. 3-953-197 (February 21, 1992). This is especially true where the claimant only "suspects" a causal connection to the employment and all of the treating physicians discount the possibility of a causal relationship to the employment. Wise v. Rockwell International Corp., supra. However, we have not concluded that, as a matter of law, a claimant may never have sufficient knowledge of the probable compensable character of the injury without a supporting medical opinion. This is true because the determination of when the claimant became aware of the probable compensable character of the injury is a question of fact for resolution by the ALJ, and we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999.
The claimant stated that throughout 1995 she believed her symptoms were related to her work because she did not feel good when she was around the methyl chloride (Tr. p. 28, 43). She also testified that she has "always" believed her symptoms are work related. (Tr. p. 43). Under these circumstances, the ALJ reasonably inferred that the claimant recognized the probable compensable character of the injury even without any corroborating medical evidence.
Furthermore, the ALJ's determination is not inconsistent with Russell Stover Candy v. Turchanyi, supra. The facts in Turchanyi involved a claim for compensation due to a work-related back injury, which was filed more than two years but less than three years after the injury. The claimant attributed the injury to employment, however the examining physicians denied a causal relationship. The court held that "under the facts" of the claim the Industrial Commission correctly determined that the claimant, as a reasonable person, would not have become aware of the compensable character of the injury while the examining physicians attributed the claimant's back pain to other ailments. Accordingly, Turchanyi illustrates that the pertinent issue is fact sensitive and not dependent on the existence of a medical opinion relating the claimant's illness to employment.
II.
Alternatively, the claimant contends the statute of limitations was tolled. The claimant argues that if she should have known the probable compensable nature of her illness by October 1995, the employer had similar knowledge and failed to report the injury to the Division of Workers' Compensation (Division). The claimant also argues the ALJ erroneously failed to consider her testimony that she reported her illness to the employer and took time off of work due to illness before October 1995. Again, we disagree.
Section 8-43-103(2), provides 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." (Emphasis added).
The reporting requirements in § 8-43-103(2)refer to the requirements in § 8-43-101(1), C.R.S. 1999 and § 8-43-103(1). See City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo.App. 1998); Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987). The relevant portion of § 8-43-101(1) provides 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).
The employer's notice is measured by the "reasonably conscientious manager" standard. Grant v. Industrial Claim Appeals Office, supra; Jones v. Adolph Coors Co. 689 P.2d 681 (Colo.App. 1984). It follows that the statute of limitations is tolled where the employer has notice or knowledge that would indicate to a reasonably conscientious manager that the claimant has sustained an occupational disease, and the employer fails to report the injury to the Division.
The claimant bears the burden of establishing that the statute of limitations was tolled. Grant v. Industrial Claim Appeals Office, supra, and the determination of whether the claimant has sustained her burden is factual in nature. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Consequently, the ALJ's findings are binding if supported by substantial evidence in the record.
Furthermore, the ALJ is presumed to have considered the entire evidentiary record, and is only required to make specific findings of fact on the evidence he found persuasive and determinative of the disputed issues. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994); Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977). Therefore, the ALJ is not required to make findings of fact on theories he did not find persuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966).
Here, the ALJ was not persuaded the statute of limitations was tolled and we perceive no basis to interfere with the ALJ's determination. The claimant's former supervisor Wes Kemper (Kemper) and Lifecare plant manager, Richard Roe (Roe), denied receiving any report from the claimant of work-related medical problems until January 1998. (Tr. pp. 75, 82, 91). Therefore, the record contains substantial evidence the employer had insufficient information to toll the statute of limitations.
Moreover, the claimant testified that in October 1995 she notified Kemper that she was not feeling well. (Tr. p. 25). The claimant also stated she believed throughout 1995 that her illness was work-related. (Tr. pp. 28, 43, 44). However, the claimant presented no evidence that she shared her beliefs about the cause of the illness with the employer until the filing of her claim for workers' compensation in January 1998. In fact, the claimant concedes that she sought medical treatment on her own and not on a referral by the employer. Therefore, the claimant's testimony, if credited does not compel the conclusion sought by the claimant. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970)
III.
Finally, the claimant contends the ALJ erroneously found that she failed to establish a reasonable excuse for her failure to file a claim within two years of the injury. We perceive no reversible error.
The ALJ's authority to determine whether the claimant established a reasonable excuse is discretionary. Therefore, the ALJ's determination may only be set aside upon proof of fraud or abuse of discretion. Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970). There is no allegation of fraud and the standard on review of an alleged abuse of discretion is whether, under the totality of circumstances, the ALJ's order "exceeds the bounds of reason." See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
The claimant contends that the absence of medical evidence supporting her belief of a causal connection between her illness and the employment constitutes a reasonable excuse for failing to file the claim before January 1998. However, the ALJ was not persuaded that the lack of corroborating medical evidence precluded the claimant from recognizing the probable compensable nature of her illness. To the contrary, the ALJ found the claimant was aware of the work-related nature of her illness even when none of the treating physicians supported her belief. Because the ALJ's finding is a plausible interpretation of the record, we cannot say the ALJ abused his discretion in finding the claimant failed to establish a reasonable excuse. Accordingly, it is irrelevant whether the employer's rights were prejudiced. Therefore, we do not consider the claimant's argument that the respondents failed to prove prejudice.
IT IS THEREFORE ORDERED that the ALJ's order dated March 29, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain ____________________________________ Kathy E. Dean
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, 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. 1999.
Copies of this decision were mailed October 29, 1999 to the following parties:
Veronica Gallegos, 3160 S. Federal, Denver, CO 80236-6004
Lifecare Services Inc., 1401 W. 122nd Ave., Denver, CO 80234-3421
American Insurance Company, c/o Firemans Fund Insurance Company, 7887 E. Belleview Ave., Englewood, CO 80111-6015
Craig M. Berube, Esq., 26 West Dry Creek Circle, #575, Littleton, CO 80120 (For Claimant)
Ricky M. Benjamin, Esq., 7887 E. Belleview Ave., #375, Englewood, CO 80111 (For Respondents)
BY: A. Pendroy