Opinion
W.C. No. 4-243-244
September 10, 1997
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Henk (ALJ), which determined that the claim for compensation is not barred by the statute of limitations, and awarded medical benefits. We affirm.
The claimant sustained a compensable neck injury on January 5, 1990, while working as a psychiatric nurse's aide. Although the claimant received treatment from at least three physicians, he testified that he did not miss any work as a result of this injury. Apparently, the claimant continued to perform his duties until the conclusion of his employment contract in May 1990. (Tr. p. 32).
Moreover, on May 8, 1990, one of the treating physicians reported that the claimant was "asymptomatic and ready to return to work." On that date, the physician gave the claimant a release to return to work which contained no restrictions.
The ALJ found that, subsequent to the termination of his contract with the respondent, the claimant performed various other jobs including nursing home aide, tree trimmer, and television delivery person. The claimant testified that he experienced increasing neck pain during this period of time, although he did not seek additional medical treatment. The claimant filed his claim for compensation in March 1995.
In February 1996, the claimant first returned to one of the treating physicians. The claimant complained of neck pain with radiation into the right upper extremity, and numbness in both hands "for the past year and a half." The examining physician opined that the neck pain was a direct result of the 1990 injury, and that the numbness "may not be related to that injury."
Under these circumstances, the ALJ concluded that the claim is not barred by the statute of limitations despite the claimant's failure to file a claim for benefits until March 1995. Specifically, the ALJ determined that the claimant should not reasonably have recognized the "nature, seriousness, and probable compensable character of his injury" until October of 1994. In support of this conclusion, the ALJ pointed out that the claimant was released without restrictions in May 1990, and it was not until October 1994 that the claimant experienced the onset of numbness in his hands. The ALJ also pointed out that it was not until February 1996 that a physician advised the claimant of a relationship between his neck pain and the 1990 injury.
On review, the respondent contends that the ALJ erred in holding that the claim is not barred by the two year statute of limitations found at former § 8-52-105(2), C.R.S. (1989 Cum. Supp.). [Note that the ALJ erroneously referred to a three year statute of limitations]. In particular, the respondents argue that the "weight of the evidence" establishes that the claimant was aware of the seriousness of his injury in 1990 because it was to some degree disabling. In support of this contention, the respondent cites the claimant's testimony that in 1990 he received medical attention for his neck, experienced continuing symptoms, and had difficulty performing some of the jobs mentioned by the ALJ. 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). This rule does not require the claimant to know the precise medical diagnosis of the condition in order to understand its "nature," but he must know that it is serious and work-related. 7, Larson's Workers' Compensation Law, § 78.41(d). In order for a claimant to be aware that a condition is "serious," he must be aware that it is to some degree disabling. See Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981); 7, Larson's Workers' Compensation Law, § 78.41(e). The "probable compensable character" element reflects the requirement that the claimant appreciate a causal relationship between the employment and the condition. 7, Larson's Workers' Compensation Law, § 78.41(f); Saxton v. King Soopers, Inc., W.C. No. 4-200-777 (March 11, 1997).
A claimant does not necessarily recognize the serious "nature" of an injury merely because he experiences ongoing pain. This is particularly true where the ongoing symptoms do not prevent the claimant from performing his regular employment. Moreover, recognition of the "nature" of an injury may occur when a claimant suddenly experiences an increase in pain which changes the character of the prior symptoms. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Intermountain Rubber Industries, Inc. v. Valdez, 688 P.2d 1133 (Colo.App. 1984). Similarly, a claimant does not necessarily recognize the disabling quality of his injury so long as he is able to perform his regular employment. Romero v. Industrial Commission, supra.
In applying the discovery rule, we may not interfere with the ALJ's pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). Thus, we may not interfere with the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, there is substantial evidence that the claimant's treating physician released him to regular employment in 1990, and did not advise him of any long term consequences of his injury. The claimant then returned to his regular employment. Thus, there is substantial evidence in the record to support the ALJ's determination that the claimant did not recognize either the nature or the seriousness of his condition until he experienced significantly worsened symptoms of numbness in October 1994.
It is true, as the respondent argues, that the claimant testified that between 1990 and 1996 his symptoms occasionally interfered with the performance of some of his duties, and that he believed there was something wrong with him. (Tr. p. 50). However, this testimony did not compel the ALJ to find that the claimant, as a reasonable person, would have recognized the nature and seriousness of the injury and filed a claim for benefits. To the contrary, this evidence must be weighed against the conflicting evidence that there was no medical documentation of a serious injury, and the fact that the claimant's physicians had released him to regular employment. Moreover, claimant's symptoms worsened only gradually until October 1994 when he experienced the bilateral numbness. Under these circumstances, we decline the respondent's invitation to substitute our judgment for that of the ALJ concerning the "weight" of the evidence.
The respondent further argues that the claimant always appreciated the "compensable character" of his condition because he recognized the causal relationship between the 1990 injury and the symptoms. We do not understand this element to have been the basis of the ALJ's order, and therefore, need not consider this issue. In any event, we have already held that the evidence supports the ALJ's determination that the claimant did not recognize the nature and seriousness of his condition until October 1994. Therefore, the order is correct regardless of this element.
IT IS THEREFORE ORDERED that the ALJ's order dated April 2, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed September 10, 1997 to the following parties:
David A. Torres, 2613 Acero, Pueblo, CO 81004
Bea Martinez, Colorado State Hospital, 1600 W. 24th St., Pueblo, CO 81003
Betty Parker, AON Risk Services, 4100 E. Mississippi Ave., #1500, Denver, CO 80222
Richard Susman, Esq., 1401 Court St., Pueblo, CO 81003 (For the Claimant)
David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For the Respondent)
By: _______________________________