Opinion
W.C. No. 4-390-817
January 14, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which denied the claim for an occupational disease on the ground it is barred by the statute of limitations. The claimant contends dismissal of the claim was improper because, for purposes of the statute of limitations, the date of injury should be equated with the date of his last injurious exposure to the disease. The claimant also challenges the ALJ's refusal to sequester the respondents' medical expert, and the ALJ's ruling which permitted testimony concerning the claimant's truthfulness. We affirm.
The claimant alleged that he sustained an occupational disease which caused injury to his back, and that the disease was incurred during his employment with the respondent-employer between May 1988 and November 1996. The respondents defended on the grounds that the claimant's back condition is the result of a preexisting degenerative disease and/or a 1988 industrial injury, which is the subject of another claim. The respondents also argued the claim is barred by the two-year statute of limitations contained in § 8-43-103(2), C.R.S. 2001.
Relying principally on the opinions of Dr. Gerber and Dr. Belleville, the ALJ found the claimant suffered from a preexisting back condition, but the hazards of the claimant's employment aggravated the back condition. Consequently, the ALJ found the claimant proved a compensable occupational disease arising out of and in the course of his employment with the respondent.
However, the ALJ also concluded the claim is barred by the statute of limitations. In support of this conclusion, the ALJ found that in June 1994 the claimant experienced back problems, and he attributed these problems to his employment. Further, the ALJ found the claimant, while on vacation, sought chiropractic treatment and the chiropractor removed him from work for three days. The claimant then chose to take sick leave after his vacation. The claimant was released to modified duty on June 14, 1994. The claimant remained employed with the respondent-employer until November 1996, when he was terminated for cause. The claimant then filed a claim for benefits.
I.
On review, the claimant does not challenge the ALJ's findings of fact with respect to application of the statute of limitations. Instead, the claimant argues that because he remained employed until November 1996, he did not sustain an "injury" until the date of his "last injurious exposure" to the hazards of the disease. Thus, the claimant argues the statute of limitations did not commence running until November 1996. We are not persuaded.
Section 8-43-103(2) provides that the right to workers' compensation benefits is barred unless the claim for compensation is filed within two years after the injury. Colorado appellate courts have interpreted this statute as incorporating the "discovery rule," which holds the statute of limitations does not begin to run until the claimant, as a reasonable person, knew or should have known the nature, seriousness and probable compensable character of the injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). Generally, these requirements mandate the claimant must recognize the nature and severity of the injury, its causal relationship to the employment, and that the injury is disabling and entitles the claimant to some compensation. City of Boulder v. Payne, supra; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981).
On appeal, the claimant does not deny substantial evidence supports the ALJ's conclusion that he recognized the nature, seriousness, and probable compensable character of the occupational disease in June 1994 when he sought medical treatment for a work-related back condition and was disabled from his employment for a period of time. However, the claimant asserts that because he sustained an occupational disease, he did not sustain an "injury" for purposes of § 8-43-103(2) until the date of the last injurious exposure.
A nearly identical argument was rejected by the Court of Appeals in Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998). In Ortiz, the claimant argued that because he suffered from an occupational disease, the date of "injury" for purposes of the six-year statute of limitations contained in § 8-43-303(1), C.R.S. 2001 (reopening statute), occurred on the date of his last injurious exposure. However, the court held the last injurious exposure rule "governs the apportionment of liability for an occupational disease between multiple employers or insurers, but does not determine the date on which a claimant has sustained a compensable occupational disease." Id. at 597; see also Robbins Flower Shop v. Cinea, 894 P.2d 63 (Colo.App. 1995). Consequently, the Ortiz court concluded the date of the "injury" for purposes of the reopening statute was the date the claimant sustained the "onset of disability" from the occupational disease.
We see no principled basis for reaching a different conclusion concerning the date of "injury" of an occupational disease under § 8-43-103(2). Further, the cases cited by the claimant as authority for a contrary result are inapposite. Consequently, we find Ortiz persuasive and conclude the ALJ did not err as a matter of law in finding that claim is barred by the statute of limitations.
II.
The claimant next contends the ALJ's order must be set aside because the ALJ committed two evidentiary errors. However, we conclude that even if an error or errors were committed, they were not prejudicial and do not warrant setting aside the order.
Generally, the Colorado Rules of Evidence govern workers' compensation proceedings. Section 8-43-210, C.R.S. 2001. C.R.E. 103 (a) provides that "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." The Workers' Compensation Act itself incorporates a harmless error standard for review of workers' compensation cases. See § 8-43-310, C.R.S. 2001.
The claimant contends the ALJ abused her discretion by failing to impose a sequestration order excluding the respondents' independent medical examination (IME) physician from being present in the courtroom during the testimony of other witnesses. However, even if sequestration of this witness was appropriate, the claimant sustained no prejudice. The respondents' IME physician testified the claimant's back condition was not caused by his employment, but was instead attributable to the preexisting degenerative condition. Obviously, the ALJ did not find this evidence persuasive and ruled in the claimant's favor concerning the existence of an occupational disease. The testimony of the IME physician was not directed to the statute of limitations issue, and does not appear to have influenced the ALJ's finding on this matter. Consequently, failure to impose a sequestration order and admission of the IME physician's testimony, even if erroneous, did not affect a substantial right of the claimant.
Similarly, even if the ALJ erred in admitting the supervisor's testimony concerning specific acts bearing on the claimant's truthfulness, any error was harmless. Again, the ALJ found the claimant proved a compensable occupational disease. Further, the ALJ's finding that the claim is barred by the statute of limitations was not based on any adverse inferences involving the claimant's credibility. The claimant did not deny that he sought medical treatment in June 1994 and believed the need for the treatment was related to his employment. In fact, the only adverse inference involving the claimant's credibility concerned the presence of back symptoms between 1988 and 1994. However, this finding was based on the absence of medical records documenting any complaints of back pain, not the testimony of the supervisor. (Finding of Fact 12). More importantly, this finding favored the claim based on an occupational disease because it tended to refute the respondents' argument that the back symptoms were caused by the 1988 injury rather than the subsequent occupational disease.
IT IS THEREFORE ORDERED that the ALJ's order dated August 18, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 14, 2002 to the following parties:
Eusebio Quinonez, P. O. Box 422, 409 Pierce Ave., Platteville, CO 80651
Town of Platteville, P. O. Box 70, Platteville, CO 80651-0070
Judy Montoya, CIRSA, 950 S. Cherry St., #800, Denver, CO 80222
John G. Taussig, Jr., Esq., 1919 14th St., #805, Boulder, CO 80302 (For Claimant)
Kathryn Kaeble Todd, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy