Opinion
W.C. No. 3-061-778
October 11, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied and dismissed her claim for benefits based on alleged occupational diseases. The claimant argues there is no evidence in the record to support the ALJ's determination the claim is barred by the statute of limitations. We affirm.
On March 11, 1998, the claimant filed a claim for benefits alleging that she developed a "severe cough," occupational asthma, and pseudotumor cerebri as a result of her work at the employer's ceramics plant. Specifically, the claimant alleged that during her employment, which lasted from 1981 through October 7, 1987, she was exposed to red dye containing sodium dichromate. Eventually, the claimant withdrew the allegation that the pseudotumor was caused by her employment, and focused on the claims for occupational asthma and bronchitis. (Tr. p. 77).
At the hearing, the claimant testified that after exposure to the red dye she began to experience respiratory problems including coughing and sore throats, as well as "blackouts" and headaches. In 1986 the claimant was shown a safety film in which she learned that the red dye may cause health problems "including something to do with your eyes and coughing." Upon learning this information the claimant provided the name of the dye to her physician, Dr. Dunn. (Tr.pp. 27-30).
At least by a January 22, 1986, Dr. Dunn diagnosed the claimant with "acute bronchitis with asthma." On March 2, 1987, Dr. Dunn noted the claimant gave a history of being exposed to heated dye and that the dye emitted "a terrible odor and she could hardly breathe." In September 1998 Dr. Dunn noted the claimant was suffering from pseudotumor cerebri, "possible toxicity from exposure to dye sprays," and had contacted a law firm. On November 7, 1988, Dr. Dunn authored a report stating the claimant's pseudotumor cerebri and her chronic bronchitis are "probably related to various chemicals that she was exposed to while working" at the employer's plant. The claimant provided these medical records to the law firm she consulted in September 1998.
In March 1989, the employer filed a first report of injury stating the claimant was alleging pseudotumor cerebri as a result of exposure to sodium dichromate. The employer also filed a notice of contest stating that it lacked sufficient information to determine whether the claimant's claim was compensable. On April 18, 1989, the Division of Labor, Workers' Compensation Section, sent a letter to the claimant advising her that if she had any claim for benefits she was required to file a claim form within three years from the date of the injury.
On April 28, 1989, the claimant completed and signed a Worker's Claim for Compensation stating she sustained an occupational disease, and that her last day of work was October 6, 1987. The claim includes the allegation that she was exposed to sodium dichromate contained in red dye, and that the dye made her "extremely sick" with various symptoms affecting her lungs, throat, and sinuses. However, this claim was never filed. The claimant testified that the law firm did not believe she had a claim. (Tr. pp. 37, 89).
The ALJ found the claimant failed to file a claim for benefits within three years after the date of injury as required by former § 8-52-105(2), C.R.S. 1989. Specifically, the ALJ found that by April 28, 1989, when the claimant completed the claim form which she forwarded to her lawyers, she recognized the "nature, seriousness, and probable compensable nature of her injury." The ALJ further found there is "no exception in the law" to prohibit the running of the statute of limitations if the claimant "is represented by attorneys who have available to them the information needed to investigate and pursue a claim on behalf of their client."
On review, the claimant contends there is "no evidence" in the record to support the ALJ's determination the claimant knew or reasonably should have known on April 28, 1989, that her occupational asthma and bronchitis were related to her employment with the respondent. The claimant asserts the respondents and the ALJ failed to distinguish between asthma and bronchitis, and various other conditions which the claimant was suffering from. Citing Miller v. Armstrong World Industries, Inc., 817 P.2d 111 (Colo. 1991), the claimant argues that discovery of one disease triggering the statute of limitations does not trigger the statute for "as yet undiscovered diseases arising out of the same toxic exposures." We find no error.
The parties do not dispute that the applicable statute of limitations is contained in former § 8-52-105(2). That statute provides a claim for benefits is barred unless the claimant files a claim within three years after the injury, or within five years after the injury in cases where the claimant establishes a "reasonable excuse" which does not prejudice the employer's rights. Under this statute, a claim accrues when 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); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The "probable compensable character" requirement reflects the need for the claimant to appreciate a causal relationship between the employment and the alleged injury and disability. Jones v. Umetco Minerals Corp., W.C. No. 4-240-988 (March 22, 1996), aff'd. Jones v. Industrial Claim Appeals Office, (Colo.App. No. 96CA0652, March 20, 1997) (not selected for publication); 7 Larson's Workers' Compensation Law, § 78.41 (f).
The question of when the claimant, through the exercise of reasonable diligence, should have discovered the requisite causal relationship is one of fact for determination by the ALJ. Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970); Salazar v. American Sterilizer Co., ___ P.2d ___ (Colo.App. No. 98CA1630, March 16, 2000). Because the issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law as long as the basis of the order is clear from those findings which were entered. Magnetic Engineering, Inc., v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA1380, June 8, 2000).
The claimant's argument notwithstanding, neither the record nor the ALJ's order supports the contention that the ALJ confused occupational asthma and bronchitis with other conditions when determining whether the claimant filed the claim within the statute of limitations. To the contrary, the ALJ's findings specifically address medical records in which the physicians diagnosed asthma and bronchitis, and records connecting those conditions to the claimant's contact with the red dye. Moreover, the ALJ's findings specifically address documents, including the April 28, 1989, claim form, in which the claimant herself related "lung" problems and bronchitis to her exposure to sodium dichromate. Although the claimant testified that in the late 1980s and early 1990s she was primarily concerned with pseudotumor cerebri, the evidence cited by the ALJ is sufficient to support the inference the claimant recognized she was suffering from serious respiratory problems, and that she associated these problems with exposure to the red dye. Thus, this is not a case in which the ALJ concluded that recognition of one occupational disease triggered the running of the statute of limitations for a separate occupational disease.
The claimant next contends the ALJ misapplied the law by finding the statute of limitations was triggered simply because the claimant was put on "inquiry notice" concerning the relationship between her respiratory problems and her employment. The claimant argues the evidence establishes a mere "suspicion" of a causal relationship, and that this suspicion was not sufficient to trigger the statute of limitations. We reject this argument.
As the claimant argues, our courts have held the mere "suspicion of a possible connection" between an injury and wrongful conduct "does not necessarily put a reasonable person on notice of the nature, extent, and cause of the injury." Rather, the focus is on the claimant's knowledge of facts. Salazar v. American Sterilizer Co., supra. However, we have previously held that the question of whether the claimant reasonably should have recognized a causal relationship between the employment and an injury is a question of fact, even in circumstances where the claimant lacks a definitive medical opinion on the issue of causation. Gallegos v. Lifecare Services, Inc., W.C. No. 4-367-958 (October 29, 1999) (where claimant testified she believed her symptoms were related to work because she did not feel well when exposed to methyl chloride the ALJ reasonably inferred claimant recognized probable compensable nature of the injury even without corroborating medical evidence).
Here, we disagree with the claimant that the ALJ's application of the statute of limitations was predicated on mere "inquiry notice." To the contrary, the ALJ found that by 1989 the claimant recognized she had serious lung problems associated with exposure to red dye. Moreover, the claimant had in her possession a medical report from Dr. Dunn expressly relating her bronchitis to exposure to the dye. Finally, the claimant herself signed the 1989 claim form in which she alleged that her lung condition was caused by exposure to red dye. Under these circumstances, the ALJ's findings negate any inference that the ALJ applied a standard of "inquiry notice."
In reaching this result, we recognize the claimant testified that she did not read the medical records which she submitted to her attorneys, including Dr. Dunn's November 1988 report, and that the attorneys did not file a claim in 1989. However, the ALJ could conclude the claimant, as a reasonable person, should have known the contents of her medical records, especially since she believed there was a causal relationship between the lung condition and the red dye. Indeed, Dr. Dunn's office notes indicate the claimant related her respiratory problems to the employment.
Moreover, the general rule is that an attorney's negligence in prosecuting a claim is charged to the claimant since the lawyer acts as the claimant's agent. 7 Larson's Workers' Compensation Law, § 78.48. Our supreme court has held that an attorney's negligent delay in filing a claim may, in some circumstances, provide a "reasonable excuse" for extending the statute of limitations. State Compensation Insurance Fund v. Foulds, 167 Colo. 123, 445 P.2d 716 (1968). However, the statutory exception for a "reasonable excuse" cannot apply in this case because the claim was filed more than five years after the claimant recognized the nature, seriousness, and probable compensable nature of the claim.
Finally, we note Finding of Fact 6 (e) in which the ALJ found that Dr. Dunn's office note dated July 20, 1987, "states that Claimant's mother reports that chemicals are really bothering claimant." We cannot ascertain whether this finding is supported by substantial evidence because the office note in question was not properly copied and is not completely legible. (See Respondents' Document 0214). However, we consider this error to be harmless since the note is largely cumulative of other evidence in the case. Section 8-43-310, C.R.S. 2000.
IT IS THEREFORE ORDERED that the ALJ's order dated April 4, 2000, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. 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 October 11, 2000 to the following parties:
Joyce A. Ramsey, P. O. Box 40213, Grand Junction, CO 81504
Joyce A. Ramsey, 3206 Bunting Ave., Clifton, CO 81520
Coors Ceramics of Grand Junction, 2449 River Rd., Grand Junction, CO 81505-1322
Adolph Coors Company, NH200, 311 10th St., Golden, CO 80401
Sedgwick James of Colorado Inc., P. O. Box 101268, Denver, CO 80250-0126
Michael A. Patrick, Esq., 630 Cleveland Ave., Louisville, CO 80027 (For Claimant)
Betty C. Bechtel, Esq., and Keri A. Yoder, Esq., 744 Horizon Ct., #300, Grand Junction, CO 81506 (For Respondents)
BY: L. Epperson