Opinion
W.C. No. 4-744-530.
January 28, 2009.
ORDER
The respondents seek review of an order of Administrative Law Judge Walsh (ALJ) dated September 17, 2008, that determined the claimant suffered a compensable injury consisting of a lumbar strain, determined that the statute of limitations was tolled and ordered payment of temporary total disability (TTD) benefits. We affirm the order in part, set it aside in part and remand for entry of a new order.
The claimant was involved in an automobile accident on January 5, 2005 while returning to the employer's office from a job interview the clamant and his supervisor conducted with a potential employer over lunch. The ALJ found that the respondents' retained medical expert opined that to the extent the claimant had any injury in the accident it was a lumbar strain. The ALJ determined this opinion was credible and concluded that the claimant suffered a lumbar strain in the accident. The ALJ determined that the representative of the employer's human resources (HR) department was aware of the accident. Using the reasonably conscientious manager standard, the ALJ determined the employer was on notice that a workers' compensation injury was likely and should be reported to the Division of Workers' Compensation. The ALJ found the employer failed to make such report and therefore the ALJ determined that the statute of limitations was tolled.
I.
The respondents first contend that substantial evidence in the record does not support the ALJ's finding that the statute of limitations was tolled. The ALJ determined that the statute did not begin to run because a reasonable employer with knowledge that an employee was injured in an accident returning from lunch with his supervisor, is on notice that a workers' compensation injury is likely and thus should report the injury to the division. The respondents argue that the representative from HR testified that she was not on notice that the lunch involved a work-related activity. Tr. (7/17/2008) at 103-04. The claimant admitted that he did not tell her of the interview with the potential employee during lunch. Tr. (7/17/2008) at 229. The respondents contend that the HR representative would only have been on notice of a likely claim if she had been given information regarding the work-related activity of the interview conducted during the lunch.
Section 8-43-103(2), C.R.S. 2008 provides that the right to workers' compensation is barred unless a formal claim is filed within 2 years of the injury. The statute of limitations begins when the claimant, as a reasonable person, knows or should have known the "nature, seriousness and probable compensable character of his injury," City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). 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 [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."
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 "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 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).
The ALJ found that an HR representative, with twenty years of experience working in Human Resources and handling workers' compensation claims, was aware that the claimant had been involved in an accident and that he and his supervisor were returning from lunch at the time of the accident. The ALJ concluded that a reasonable employer with this knowledge is on notice that a workers' compensation injury was likely and thus should report the injury to the Division.
We are not persuaded that the ALJ erred in determining that the statute of limitations was tolled. This is so even if the HR representative lacked knowledge that there had been an interview with a prospective employee at the lunch. In our opinion, there is substantial evidence to support the ALJ's decision that the employer was on notice that a workers' compensation was likely regardless of what knowledge the HR representative had. As argued by the claimant, the supervisor was aware that there had been an automobile accident following a job interview the claimant and the supervisor had conducted during lunch with a prospective employee. The claimant correctly points out that there was testimony from the supervisor that the claimant later told him the reason he was missing work was due to a back injury that had come from the car accident. Tr. (7/17/2008) at 54.
It may be that the ALJ made no specific findings on the issue of the supervisor's knowledge under the reasonably conscientious manager standard, but rather, only addressed the issue of the knowledge of the representative of the HR department. However, it is implicit in the order that the supervisor's knowledge was sufficient to toll the running of the statute of limitations because the employer was on notice and yet made no report of the injury to the Division.
Moreover, we note an alternative ground for upholding the ALJ's determination that the claim was not barred by the statute of limitations. Here the accident occurred on January 5, 2005 and the claim was filed on December 7, 2007. Therefore, the claim was filed outside of the two-year statute of limitations, but within three years of the accident. Here the ALJ found that the claimant was told his accident would not be covered under the Workers' Compensation Act. Tr. (6/24/2008) at 60. In our view the ALJ acted within his discretion in concluding that under § 8-43-103(2) there existed reasonable cause for the claimant's failure to file his claim within two years, but did file it within three years.
Section 8-43-103(2) C.R.S. 2008, provides that the right to workers' compensation benefits is barred unless a formal claim is filed within two years after the injury. However, the two-year limitation period 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."
Ordinarily, the determination of when these circumstances came into existence so as to trigger the running of the statute of limitations is one of fact for the ALJ. Saxton v. King Soopers, Inc., W.C. No. 4-200-777 (March 11, 1997). The ALJ has wide discretion in determining whether the claimant presented a "reasonable excuse" for failure to file a claim within the two-year statute of limitations. Butler v. Memorial Gardens Cemetery, W. C. No. 4-589-950 (November 09, 2005). Further, a determination that the claimant has a reasonable excuse will not be set aside except on a showing of fraud or abuse of discretion. Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970). The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). Applying this principle here, we perceive no error in the ALJ's order.
Here the ALJ found that the claimant inquired of the HR department as to the applicability of workers' compensation and was told it would not cover the accident. See Colorado Fuel Iron Corp. v. Industrial Commission, 129 Colo. 287, 269 P.2d 696 (1954) (excusing widow claimant's late filing where employer misled her about filing claim). We further note that the ALJ concluded that the respondents' rights were not prejudiced by the claimant's failure to file a claim earlier. See Industrial Commission of Colorado v. Newton Lumber Manufacturing Company, 135 Colo. 594, 314 P.2d 296 (1957) (prejudice to employer must be shown to be actual). Under these circumstances, we cannot say that the ALJ abused his discretion in determining that a reasonable excuse existed for the delayed filing of the claim, thereby tolling the statute.
II
On appeal, the respondents contend that substantial evidence in the record does not support the ALJ's finding that Dr. Ridings opined that the claimant sustained a lumbar strain in a work-related accident on January 5, 2005. We disagree.
Here the ALJ found with record support that the respondents' expert opined in his report that, to the extent that the claimant had any injury in the accident of January 5, 2005 it was a lumbar strain. Exhibit A at 11. The ALJ found this opinion to be credible that the claimant did suffer a lumbar strain in the accident.
We note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent expert testimony is subject to conflicting interpretations the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Whether there is a substantial evidence to support the ALJ's decision is a question of law, but the evidence must be viewed as a whole in the light most favorable to the prevailing party. City of Loveland Police Dep't v. Industrial Claim Appeals Office, 141 P.3d 943, 950 (Colo.App. 2006) (citing Industrial Commission v. Royal Indem. Co., 124 Colo. 210, 236 P.2d 293 (1951). Substantial evidence "is that which is probative, credible, and competent, such that it warrants a reasonable belief in the existence of a particular fact without regard to contradictory testimony or inference." City of Loveland Police Dep't, 141 P.3d at 950 (citing Allen Co. v. Indus. Commission, 762 P.2d 677(Colo. 1988); Colorado State Bd. Of Med. Exam'rs v. Davis, 893 P.2d 1365 (Colo.App. 1995)).
We acknowledge, as pointed out by the respondents, that the expert in his testimony at hearing clarified his report stating that in his opinion the claimant suffered no injury related to the January 5, 2005 accident. Tr. (7/17/2008) at 176, 184, 199, 200, 201, 214. There may be some difficulty in reconciling Dr. Ridings repeated statements that the claimant suffered no injury related to the January 5, 2005 motor vehicle accident and the ALJ's reliance on the doctor's statement in a report that to the extent that the claimant had any injury in the accident it was a lumbar strain to conclude that the claimant suffered a lumbar strain in the accident.
However, in our view, the medical report does support the ALJ's finding that the claimant suffered a lumbar strain in the accident. Therefore, despite the conflicting evidence in the record on what Dr. Ridings opinion was, we must uphold the ALJ's order if it is supported by substantial evidence. Section 8-43-308 C.R.S. 2008. In our opinion, there was substantial evidence to support the ALJ's conclusion as to Dr. Ridings' opinion.
III.
The respondents argue that the ALJ erred in awarding TTD benefits because the claimant worked from his bed during the claimed period of TTD. Tr. (7/17/2008) at 78. We are not persuaded that the ALJ erred.
We initially note that the claimant also testified that he missed three weeks of work and in the testimony of the claimant's supervisor there appears to be an acceptance that the claimant missed three weeks. Tr. (7/17/2008) at 75-78. We recognize that the ALJ did not specifically address the issue of the claimant's work from bed. However, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, as expressly recognized by the ALJ, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). To the extent that there was testimony that the claimant worked from home, which was inconsistent with the testimony that the claimant missed three weeks of work, the ALJ was free to rely on those portions he found persuasive and to reject other portions . See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The respondents next contend that substantial evidence in the record does not support the ALJ's award of TTD benefits from January 6, 2005 through February 7, 2005. The respondents note that in another part of his order, the ALJ found that the claimant should receive TTD benefits for a period of three weeks. The respondents correctly note that the period of January 6, 2005 through February 7, 2005 does not constitute three weeks.
In his brief in opposition to respondents' petition to review, the claimant points out testimony from the claimant that he was off work for three weeks. However, the claimant has not pointed us to any evidence in the record to support the award of TTD benefits from January 6, 2005 through February 7, 2005. We note that in the claimant's position statement filed before entry of the order under review, he requested TTD benefits from January 6, 2005 and continuing for a period of three weeks.
We further note that the workers' claim for compensation lists the last day of work as January 5, 2005 and the date the claimant returned to work was approximately February 9, 2005. Exhibit 2. There may be support in the extensive medical record or employment records for the period awarded. However, it is not readily apparent from the record. The order itself does not explain the justification for the selection of the specific period of award of TTD benefits, as contrasted to the general finding of a three-week period of disability.
We are aware that the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). However, it would be speculation for us to ascribe the apparent disparity between the findings as merely the result of the ALJ generally describing the period of disability after the accident as three weeks and then awarding TTD benefits for a specific period of time. Because the findings do not support the award, we must remand the matter for a determination of the specific period of TTD benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated September 17, 2008 is affirmed to the extent that it determined that the statute of limitations was tolled and that the claimant suffered a compensable injury consisting of a lumbar strain and in all other respects except the order is set aside on the issue of the claimant's entitlement to TTD benefits for the period specified in the order, and is remanded for additional findings on that issue consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D.Baird
______________________________
Thomas Schrant
JAMES CARTER, COLORADO SPRINGS, CO, (Claimant).
ENT FEDERAL CREDIT UNION, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ./MS MYRNA VALENCIA, DENVER, CO, (Insurer).
ANDERSON, HEMMAT LEVINE, L.L.C., Attn: JORDAN S LEVINE, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: CRAIG R ANDERSON, ESQ., COLORADO SPRINGS, CO, (For Respondents).