Opinion
W.C. No. 4-705-444.
January 14, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated September 18, 2008 that determined the claimant's occupational disease claim was barred by the statute of limitations. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant was employed as a nurse providing medical care for a child. His duties required him to monitor the child in a swim spa and as a result he developed what was diagnosed in July 2001 as "hot tub lung." The ALJ found that in 2001, the claimant should have recognized the nature, seriousness and probable compensable character of his lung disease. The claimant did not report the existence of any alleged occupational disease to the employer until November 2006 when a verbal report was made. The claimant also filed a claim in November 2006. The ALJ determined that the claim was barred by the two-year statute of limitations. This appeal by the claimant followed.
The claimant argues that his claim was an occupational disease and because he never missed any time at work there was no "onset of disability" and therefore his claim was not barred by the statute of limitations. We are not persuaded that the ALJ erred in determining that the claim was barred by the statute of limitations.
Section 8-43-103(2), C.R.S. 2008, provides that a claim shall be barred "unless within two years after the injury or after death resulting therefrom, a notice claiming compensation is filed with the division." The statute of limitations does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable nature of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). The question of whether a claimant as a reasonable person should recognize the nature and seriousness of an injury is ordinarily one of fact for resolution by the ALJ.
Here the ALJ found that by 2001 the claimant should have recognized the nature, seriousness and probable compensable character of his lung disease. The claimant did not file a claim until November 2006 and therefore the ALJ determined his claim was barred by the two-year statute of limitations. Because these issues are largely factual in nature, we must uphold the ALJ's determinations if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
On the issue of the statute of limitations, the ALJ made the following pertinent findings of fact, which are supported by testimony or evidence in the record. Because of his physical symptoms, the claimant altered his duties to avoid the swim spa, and he was unable to perform his role supervising the child during therapy in the swim spa. Tr. (6/27/08) at 27; Tr. (3/12/08) at 37. The claimant also limited his physical activities with the child including walking, due to his reduced breathing capacity and shortness of breath. Tr. (3/12/08) at 38. The ALJ found that by 2001 the claimant knew or should have known that the spa exposure where he worked was causing his lung problems. Tr. (3/12/08) at 37. By that time the disease had manifested itself and, as a result, the claimant was working in a limited capacity. Tr. (3/12/08) at 37-38. After being informed of the diagnosis the claimant's condition affected his ability to perform his regular job duties effectively and efficiently. Tr. (3/12/08) at 37. The claimant was informed by his doctor in 2001 of the alleged link between his symptoms and the swim spa, the need for specific treatment and told to avoid the swim spa entirely. Tr. (3/12/08) at 36-37. The claimant received a handicapped-parking permit by his physician in 2003 due to his ongoing lung symptoms, believed to be caused by the exposure to bacteria at the swim spa. Tr. (3/12/08) at 37. In 2003, the claimant could not perform certain life activities such as walking and he needed the parking permit. Tr. (3/12/08) at 37. In our view, the ALJ's determinations are supported by substantial evidence and we perceive no reason to disturb the ALJ's conclusion that the claim was barred by the two-year statute of limitations.
Contrary to the claimant's argument, we do not consider City of Colorado Springs v. Indus. Claim Appeals Office, 89 P.3d 504 (Colo.App. 2004) as compelling the conclusion that here there was no disability sufficient to trigger the running of the statute of limitations. In City of Colorado Springs, the court held that because an occupational disease is compensable only if it results in disablement, the point of the onset of disability is an appropriate test for determining when the limitation period begins to run in occupational disease cases. The onset of a disability occurs when the occupational disease impairs the claimant's ability to perform his or her regular employment effectively and properly, or when it renders the claimant incapable of returning to work except in a restricted capacity. Leming v. Indus. Claim Appeals Office, 62 P.3d 1015 (Colo.App. 2002); City of Colorado Springs v. Indus. Claim Appeals Office, supra. As we understand City of Colorado Springs, the statute of limitations may begin to run in an occupational disease case at the time of the onset of disability. In this regard, the court stated that "we conclude that the onset of disability is an appropriate test for determining when the limitation period begins to run in occupational disease cases." City of Colorado Springs, 89 P.3d at 506.
In our opinion, the facts cited above constitute substantial evidence to establish an onset of disability more than two years before the claim was filed. The ALJ found with record support that by 2001, the claimant's lung condition affected his ability to perform his job duties efficiently and effectively. The record supports a conclusion that the onset of a disability had occurred. As pointed out by the respondents if a worker is unable to perform his job duties effectively or properly, disability is established. Jefferson County Schools v. Headrick 734 P.2d 659 (Colo.App. 1986). In our opinion, the ALJ's order imposing the statute of limitations is consistent with the onset of disability test for determining when the limitation period begins to run as directed by City of Colorado Springs. Therefore, we see no reason to interfere with the ALJ's order.
Finally, we disagree with the claimant's argument that City of Colorado Springs compels the conclusion that the statute of limitations cannot begin to run until the claimant misses work so as to entitle him to indemnity benefits. In this regard, the court stated that for a claimant to recognize the probable compensable character of an injury "the injury must be of sufficient magnitude to cause a disability that would lead a reasonable person to recognize that he or she may be entitled to disability benefits." City of Colorado Springs, 89 P.3d at 506. This is not the equivalent of the court holding that the statute of limitations cannot begin to run until sufficient time is lost from work to entitle the claimant to indemnity benefits. Rather, it requires that the severity of the condition be such as to lead reasonably to the recognition that entitlement to disability benefits may result from the occupational disease.
As noted above the onset of a disability can occur when the occupational disease merely impairs the claimant's ability to perform his or her regular employment effectively and properly. City of Colorado Springs supra; Leming v. Indus. Claim Appeals Office, supra.; Union Carbide Corp. v. Industrial Claim Appeals Office 128 P.3d 319 (Colo.App. 2005).
Here, based upon the factual findings of the ALJ, the claimant possessed knowledge of the relation of his medical condition to the employment. Further, the claimant was undergoing medical treatment and was forced by his condition to alter the performance of his work. The claimant could have reasonably been expected to make a claim and similarly the condition at that time was of a magnitude such that he could reasonably be expected to be entitled to indemnity benefits. Therefore, we are not persuaded that because the claimant did not miss any work the ALJ erred in determining that the claim was barred by the statute of limitations set forth in § 8-42-103(2).
IT IS THEREFORE ORDERED that the ALJ's order issued September 18, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Curt Kriksciun
____________________ Thomas Schrant CARL OTT, LITTLETON, CO, (Claimant).
PEDIATRIC SERVICES OF AMERICA, INC., Attn: MS PATTY GREEN, UNIT K, DENVER, CO, (Employer).
TRAVELERS INSURANCE COMPANY, Attn: PAM HSIEH, DENVER, CO, (Insurer).
ELEY GALLOWAY TRIGG, LLP, Attn: ROBERT TRIGG, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: DOUGLAS THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).