Opinion
W.C. No. 4-443-162
January 10, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied and dismissed the claim for an occupational disease because it is barred by the statute of limitations. Because the ALJ applied an incorrect legal standard, we remand for further proceedings.
The claimant does not dispute the ALJ's findings of fact. The claimant was employed as a fireman for 31 years. From 1969 until 1983, when the claimant was promoted to battalion chief, he suffered substantial exposures to smoke. In the "early 1990s" the claimant began experiencing "exertion-induced shortness of breath and tightness in his chest." By October 8, 1992, the claimant was suffering persistent coughing and congestion, and sought medical treatment from his family doctor and several specialists throughout the remainder of the 1990s. The ALJ found that by the early 1990s the claimant believed there was a relationship between his respiratory problems and "irritants he was exposed to at work." The claimant quit his employment on February 6, 2000, because he no longer believed he was capable of performing his duties, and "he could not even climb the stairs to his office."
On November 15, 1999, the claimant notified the employer that he suspected he suffered from a work-related injury, and the employer filed a first report of injury on November 29, 1999. The ALJ found there is no evidence the claimant filed a claim for benefits, although the record shows that on February 28, 2001, he filed an application for hearing seeking temporary total disability benefits. See Enright v. Super Valu Stores, W.C. No. 3-918-836 (June 30, 1995) (application for hearing filed by claimant sufficient to constitute notice of claim).
The ALJ found the claimant suffers from an occupational disease caused by the inhalation of smoke while fighting fires. However, the ALJ also found the claimant "recognized the nature and seriousness of his condition, as well as the probable relationship between the condition and his work" by October 8, 1992, when he sought treatment. Consequently, the ALJ concluded the claim is barred by the statute of limitations contained in § 8-43-103(2), C.R.S. 2001, because it was not filed within two years after the "injury." The ALJ also rejected the claimant's argument that the statute of limitations did not begin to run until he experienced the "onset of disability," which the claimant equates with the date of his retirement.
On review, the claimant argues the statute of limitations contained in § 8-43-103(2) cannot bar the claim for benefits because he suffers from an occupational disease, and an occupational disease is not incurred until the claimant experiences the "onset of disability." The claimant argues he did not experience the "onset of disability" until he retired in February 2000. The respondents failed to file a brief in opposition to the claimant's brief. Because the ALJ apparently misapplied the law, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 2001.
Section 8-43-103(2) 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." When interpreting this statute our courts have applied the "discovery rule" which holds 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); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Determination of this question is generally one of fact for the ALJ. Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo.App. 1984).
In order for the claimant to recognize the "seriousness" and "probable compensable nature of the injury" it is necessary that the injury be to some extent disabling and entitle the claimant to compensation in the form of disability benefits. See City of Boulder v. Payne, 426 P.2d at 197 (benefits do not flow to a worker merely because there is an injury at work); Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981) (claimant was not obligated to report an injury until its seriousness was discovered and she was forced to stop work); Hoaglund v. B B Excavating, W.C. No. 4-465-123 (September 13, 2001); Correll v. Storage Technology Corp., W.C. No. 4-221-615 (July 28, 1995) (in occupational disease case the date of claimant's "injury" for purposes of the statute of limitations occurred later than the "onset of disability" because, although the claimant sustained some impairment of his ability to perform regular duties in 1990, he did not become entitled to any compensation for temporary disability until he underwent surgery in 1994). Similarly, in Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo.App. 1998), an occupational disease case, the court held that the date of "injury" for purposes of reopening under § 8-43-303(1), C.R.S. 2001, was the date of the claimant's onset of disability rather than the date of the last injurious exposure.
Here, it appears the ALJ concluded the statute of limitations commenced running against the claimant regardless of the date he experienced the onset of disability and suffered a compensable disability resulting from the occupational disease. This was error as a matter of law. Romero v. Industrial Commission, supra. However, because the claimant did not designate a transcript we are unable to ascertain whether the complete record contains any basis for finding the statute of limitations commenced running prior to the date of the claimant's retirement. Consequently, we must set aside the ALJ's order and remand for entry of a new order consistent with the views expressed herein.
IT IS THEREFORE ORDERED that the ALJ's order dated July 10, 2001, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
Copies of this decision were mailed January 10, 2002 to the following parties:
William Sopp, 3750 Saints Ct., Colorado Springs, CO 80904
City of Colorado Springs, P. O. Box 1575-1145, Colorado Springs, CO 80901-1575
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondent)
BY: A. Pendroy