Opinion
W.C. No. 4-200-777
March 11, 1997
ORDER OF REMAND
The respondent seeks review of a final order of Administrative Law Judge Stuber (ALJ), which awarded the claimant medical benefits. The respondents contend the ALJ erred in determining that the claim is not barred by the statute of limitations. We set the order aside and remand for entry of a new order.
The ALJ found that the claimant developed back and leg pain in 1991. However, the claimant's main physical problem was abdominal pain, and the ALJ found that the claimant did not make any connection between her work and her back and leg pain.
In November 1991, the claimant's family physician, Dr. Cameron, noted that the claimant's work required her to engage in twisting motions, and that these motions "seemed to intensify her problems." Dr. Cameron referred the claimant to Dr. Senicki, who examined the claimant in January 1992. Dr. Senicki diagnosed lumbar and cervical myositis, and trochanteric bursitis with associated gluteal strain. Dr. Senicki treated the claimant with physical therapy and injections.
In June 1993, the claimant left work because of low back and hip pain. The claimant also developed depression caused by these conditions.
On November 8, 1993, the claimant questioned Dr. Senicki concerning the etiology of her back and hip pain. At that time, Dr. Senicki advised the claimant that she was suffering from a "repetitive strain-type disorder" caused by her employment. The claimant then notified the respondent that she desired to reopen another claim for upper extremity problems, but did not tell the respondent that her back and hip problems were work-related.
On January 7, 1994, the claimant first notified the respondent in writing that her low back and hip problems were connected to the employment. The respondent then filed a First Report of Injury on January 12, 1994, and a Notice of Contest on January 28, 1994. The claimant filed an Application for Hearing on March 27, 1996, requesting a determination of compensability and medical benefits.
Under these circumstances, the ALJ concluded that the claimant did not recognize the probable compensable nature of her injury until November 8, 1993, and that the statute of limitations commenced running on that date. The ALJ also found that the claimant did not submit a claim for compensation until she filed her Application for Hearing on March 27, 1996. However, the ALJ determined that the claim is not barred by the two year statute of limitations found at § 8-43-103(2), C.R.S. (1996 Cum. Supp.). Apparently, the ALJ concluded that the respondent's actions in filing the First Report of Injury and the Notice of Contest equated to the filing of a notice of claim for purposes of tolling the statute of limitations.
In any event, the ALJ determined that the claimant had a "reasonable excuse" for filing the application for hearing outside the two-year limitation period. This conclusion was based on the ALJ's finding that "the claimant received health insurance disability benefits and then workers' compensation benefits" for her unrelated upper extremity injury between 1993 and the date of the hearing. The ALJ also discredited the insurance adjuster's testimony that the respondent was prejudiced by the claimant's delay in filing the claim for benefits.
I.
On review, the respondent first contends that the ALJ erred in determining that the statute of limitations commenced running in November 1993 rather than November 1991. Alternatively, the respondent argues that the statute of limitations commenced running in February 1993, when the claimant was restricted to working three days per week due to her back symptoms. We are not persuaded.
Colorado follows the "discovery rule" which holds that the statute of limitations does not commence running 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). Under this rule, it is not required that the claimant know the precise medical diagnosis of her condition, so long as she knows that it is serious and work-related. 2B Larson, Workmen' s Compensation Law, § 78.41(d). In order for a condition to qualify as "serious," the claimant must be aware that it is to some degree disabling. See Romero v. Industrial Commission, 632 P.2d 1053 (Colo.App. 1981); 2B Larson, Workmen's Compensation Law, § 78.41(e). Further, the "probable compensable character" element reflects the requirement that the claimant appreciate a causal relationship between the employment and the condition. 2B Larson, Workmen's Compensation Law, § 78.41(f).
In applying these principles, we are bound by the rule that the ALJ's pertinent findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Consequently, we are obliged to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ was not required to find that the claimant was aware of the probable compensable nature of her injury in November 1991. Although Dr. Cameron's November 21, 1991 report suggests a possible relationship between the claimant's back problems and her employment, there is no evidence that the claimant was made aware of this relationship. Moreover, the ALJ was not obliged to find that the claimant's problems were disabling since the claimant continued to work at her regular employment after November 21, 1991.
It is true that, in February 1993, Dr. Senicki imposed restrictions on the claimant as a result of her hip problems. However, there is again no indication that the claimant was notified of a possible relationship between the employment and the hip symptoms.
Under these circumstances, the record fully supports the ALJ's determination that the two year statute of limitations did not commence running until November 1993. It was not until that time that the claimant was fully apprised of the relationship between the duties of her employment, her pain, and her inability to work.
II.
The respondent next contests the ALJ's determination that the filing of the First Report of Injury and the Notice of Contest constituted notice of a claim sufficient to toll the statute of limitations. For her part, the claimant argues that the ALJ is correct because anyone can file a notice of claim on behalf of the claimant, and a claim for benefits need not be in any particular form. Under the facts present here, we agree with the respondent.
It is true that a timely filed notice of claim need not take in any particular form. Colorado Auto Body, Inc. v. Newton, 160 Colo. 113, 414 P.2d 480 (1966); Intermountain Rubber Industries, Inc. v. Valdez, 688 P.2d 1133 (Colo.App. 1984). However, to toll the statute, an informal substitute for a claim must, at a minimum, identify the claimant, indicate that a compensable injury has occurred, and convey the idea that the claimant expects compensation for the injury. Martin v. Industrial Commission, 608 P.2d 366 (Colo.App. 1980). In Martin, the court of appeals held that the filing of an employer's report of accident was insufficient to constitute a claim. Although the report identified the claimant and details concerning the alleged injury, it failed to assert that a compensable injury had occurred, or to indicate that the claimant expected compensation for the injury.
Here, neither the First Report, nor the Notice of Contest, indicates that the claimant "expects" compensation for the injury. Further, neither document establishes that a compensable injury occurred. To the contrary, the Notice of Contest evidences the respondent's position that no such injury occurred. Thus, we hold that the ALJ erred insofar as he determined that the First Report of Injury and Notice of Contest stopped the running of the statute of limitations.
We do not view Pinkard Construction Co. v. Schroer, 487 P.2d 610 (Colo.App. 1971) (not selected for publication), relied on by the claimant, as authority to the contrary. In Pinkard, the claimant himself prepared and signed the "supplemental report of accident," which indicated that the claimant had sustained a herniated disc. Under those circumstances, the court concluded that the supplemental report was sufficient to indicate that a compensable injury had occurred, and that the claimant was seeking compensation.
III.
The respondent next contends that there is insufficient evidence to support the ALJ's conclusion that the claimant had a "reasonable excuse" for filing the Application for Hearing after the running of the two year statute of limitations. We conclude that the ALJ's findings are insufficient to support appellate review, and therefore, remand for entry of a new order on this issue.
We may set aside an ALJ's order if the findings of fact are insufficient to permit appellate review of the basis of the ALJ's order. Section 8-43-301(8). The findings must be sufficient to indicate the evidence which the ALJ found to be dispositive of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
As a general matter, 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. 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). An abuse may be shown where the order is contrary to law, or not supported by substantial evidence. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Not every excuse for a late filing constitutes a "legal" excuse. Armour and Co. v. Industrial Commission, 149 Colo. 251, 368 P.2d 798 (1966). Rather, the excuse must be one which is reasonably sufficient to justify the delay in view of the attendant circumstances. Silsby v. Tops Drive-In Restaurant-Dutton Enterprises, Inc., 160 Colo. 549, 418 P.2d 525 (1966). In this vein, we have previously held that a claimant's ignorance of the right to claim workers' compensation benefits does not constitute a legal excuse for late filing of a claim. Ramos v. Sears Roebuck Co., W.C. No. 4-156-827, February 10, 1994; Tancredo v. Adams County School District No. 50, W.C. No. 3-889-580, October 15, 1991.
Here, the ALJ appears to have found that, because the claimant was receiving benefits for an unrelated workers' compensation injury, she was excused from filing a claim for benefits in this case. However, the ALJ made insufficient findings for us to ascertain the rationale for his conclusion that the claimant's receipt of benefits from another injury excuses her failure to file a timely claim for benefits on account of her back and hip injury. As the ALJ indicated, by November 1993 the claimant was aware of the serious, disabling nature of her work-related back condition, and her need for treatment of the condition. It is unclear how the claimant's receipt of disability benefits for her upper extremity condition constituted a reasonable excuse for her failure to file a timely claim for medical treatment of her unrelated back condition. On remand, the ALJ must enter specific findings of fact which indicate the "attending circumstances" which justify the conclusion that the claimant's receipt of benefits for her upper extremity injury excuses the late filing of the claim in this case.
In light of this determination, we need not reach the respondent's contention that they were prejudiced by the late filing in this case.
IT IS THEREFORE ORDERED that the ALJ's order dated August 29, 1996, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
Copies of this decision were mailed March 11, 1997 to the following parties:
Nancy F. Saxton, 2772 S. Roslyn St., Denver, CO 80231
King Soopers, Inc., Attn: Lorna Sykes, P.O. Box 5567, T. A., Denver, CO 80217
Susan D. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
John Napier, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondent)
By: _______________________________