Opinion
W.C. No. 3-839-812
April 8, 1998
ORDER OF REMAND
Respondents Holiday Inn — DIA (Holiday Inn) and American Motorists Insurance Company/Kemper Insurance Company (collectively, Kemper respondents), seek review of orders of Chief Administrative Law Judge Felter (ALJ Felter) and Administrative Law Judge Rumler (ALJ Rumler). ALJ Felter determined that the claimant sustained a compensable occupational disease and was last injuriously exposed to the disease while employed by Holiday Inn. He also rejected a defense based on the statute of limitations. ALJ Rumler ordered the Kemper respondents to pay medical benefits attributable to the claimant's disease. We set the orders aside and remand for entry of a new order.
In his order of October 17, 1996, ALJ Felter determined that the claimant sustained an occupational disease involving osteoarthritis of both feet. ALJ Felter found the claimant contracted the disease between September 1987 and the end of 1990, during a period of time she was required to walk on hard marble floors in the course of her job as a waitress. During this period, the claimant was employed by the Radisson Hotel-Denver (Radisson), which was insured by the respondent Colorado Compensation Insurance Authority (collectively CCIA respondents).
ALJ Felter found that the Holiday Inn hired the claimant as a waitress in July 1995. This job required the claimant to walk substantial distances, although on carpet rather than marble.
Ultimately, ALJ Felter found the claimant's employment at Holiday Inn "aggravated" her osteoarthritis. Consequently, the ALJ concluded that the claimant sustained a last injurious exposure to the disease while employed by Holiday Inn and ordered the Kemper respondents to select a physician to treat the condition.
ALJ Felter also denied a defense based on the statute of limitations. In this regard, the record demonstrates that the claimant did not file a claim for benefits until December 1994. However, ALJ Felter found that the Radisson filed a First Report of Injury in 1986, and that between September 1987 and 1990 the claimant "consistently made her supervisors aware that marble floors were causing her pain in both feet."
Following entry of ALJ Felter's order, the Kemper respondents appealed. However, we dismissed the petition to review for lack of a final order.
Subsequently, a hearing was held concerning the claimant's entitlement to medical benefits. In an order dated October 23, 1997, ALJ Rumler noted that ALJ Felter found the claimant "had a compensable claim against" Holiday Inn. ALJ Rumler also found that an authorized treating physician prescribed "orthopedic shoes." Consequently, ALJ Rumler ordered the Kemper respondents to pay for the shoes.
I.
On review, the Kemper respondents contend that ALJ Felter erred in denying their defense based on the statute of limitations. They argue that the duty to file a claim for compensation was not vitiated by Radisson's action in filing the first report of injury in 1986. We find no error.
The statute of limitations currently codified at § 8-43-103(2), C.R.S. 1997, requires the claimant to file "a notice claiming compensation" within two years after the injury, or the claim for compensation is barred. The statute further provides that the statute is tolled where the "employer has been given notice of an injury and fails, neglects, or refuses to report said injury to the division as required by the provisions" of the Act. Here, we note that ALJ Felter did not specifically determine the date on which the claimant incurred the occupational disease. Therefore, it is impossible to determine whether the case is governed by the two year statute of limitations found in § 8-43-103(2), or the three year statute of limitations which applies to injuries sustained before July 1, 1989. See 1989 Colo. Sess. Laws, ch. 70 at 420-423.
However, regardless of which statute of limitations applies, ALJ Felter determined that there was no requirement to file a claim because the Radisson filed a first report of injury in 1986, and because the statute of limitations was tolled by the claimant's action in notifying her supervisors that walking on the marble floors was injuring her feet. We agree with the ALJ that the claimant's action in notifying the Radisson of her disease, and Radisson's failure to file another first report of injury resulted in the tolling of either statute of limitations.
The employer's duty to report an injury to the Division of Workers' Compensation (Division), is set forth in § 8-43-101(1), C.R.S. 1997. See City of Englewood v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA1441, March 5, 1998); Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987). Section 8-43-101 requires employers to report "occupational diseases" which result in lost time or permanent physical impairment. See Wesley v. Department of Institutions, W.C. No. 3-971-835 (May 28, 1993). The employer's duty to report is triggered when it has some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim. Jones v. Adolph Coors Co., 689 P.2d 681, 684 (Colo.App. 1984); Gordon v. Deluxe/Current Inc., W.C. No. 4-286-998 (June 20, 1997).
Here, the claimant testified that between September 1987 and the end of 1990 she repeatedly advised the Radisson's supervisors and personnel managers that "this floor is ruining my feet" and "tearing them up." In 1994 she told one supervisor that she "probably would not be hired back because of my feet, how bad of shape they were in." (Tr. pp. 21-22).
Under these circumstances, the record supports the ALJ's implicit conclusion that the claimant gave the Radisson sufficient notice of the contraction of an occupational disease so as to trigger its duty to file a first report of injury. The claimant's testimony supports the inference that she advised her supervisors that the conditions of her employment were "destroying" her feet and impairing her employability. A prudent manager could reasonably have inferred that this condition was permanently physically impairing, and might lead to a claim for compensation. Thus, we hold the record supports ALJ Felter's conclusion that the statute of limitations was tolled by Radisson's failure to file a first report of injury. Section 8-43-301(8), C.R.S. 1997.
In this regard we do not believe that Radisson's action in filing a first report of injury in September 1996 excuses the failure to file a new first report concerning the occupational disease of osteoarthritis contracted between 1987 and 1990. The 1986 report of injury indicates that it was based on the claimant's report of "bunions on both feet." As ALJ Felter found, the osteoarthritis sustained between 1987 and 1990 did not involve bunions, but structural collapse of the claimant's feet. While the bunions and osteoarthritis both affected the claimant's feet, ALJ Felter was not required to conclude that these conditions were the same disease. In light of this disposition, we need not address the claimant's remaining arguments in opposition to the respondents' theory.
II.
The Kemper respondents next contend that ALJ Felter erred in finding the claimant sustained a "last injurious exposure" to osteoarthritis while employed by Holiday Inn. They argue ALJ Felter's factual finding that the claimant's work at Holiday Inn "aggravated" the osteoarthritis is insufficient to establish a "last injurious exposure." Further, these respondents argue Dr. Kasven's testimony does not support a finding that the claimant's work at Holiday Inn, which permitted her to walk on carpet rather than marble floors, would have caused the disease if continued over a sufficient period of time. We set aside the orders of ALJ Felter and ALJ Rumler because the last injurious exposure test is not applicable to awards of medical benefits.
Initially, we note that this case is governed by the last injurious exposure rule without regard to substantial permanent aggravation. This is true because ALJ Felter found the claimant sustained the disease prior to the effective date of the current version of § 8-41-304(1), C.R.S. 1997.
A last injurious exposure exists when the duties of employment expose the claimant to a "concentration" of the hazard which would be sufficient to cause the occupational disease in the event of continued work. Royal Globe Insurance Co. v. Collins, 723 P.2d 731 (Colo. 1986); Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). However, in Royal Globe, the Supreme Court held that the last injurious exposure rule does not govern liability for medical benefits, but instead liability rests with the "carrier on the risk at the time medical expenses are incurred."
Because the "last injurious exposure" rule does not govern liability for medical benefits, the question arises as to when an employer or insurer may be considered "on the risk" when medical expenses "are incurred." In resolving this issue, we have held that an insurer is considered "on the risk" if it insured the employer which actually caused the need for medical treatment. Put another way, liability for medical benefits is determined under the ordinary rules of causation governing liability for workers' compensation benefits. Wallace v. Home Base, W.C. No. 4-210-135 (June 6, 1996); Martinez v. Storage Technology Corp., W.C. No. 4-175-875 (August 31, 1995).
Here, ALJ Felter determined the claimant sustained a last injurious exposure while employed by Holiday Inn. Therefore, ALJ Rumler determined the Kemper respondents are liable for the claimant's orthopedic shoes under the last injurious exposure rule. However, the actual issue to be determined is whether the need for orthopedic shoes was caused by the claimant's employment at Radisson, or by the "aggravation" sustained while employed by Holiday Inn. On remand, the ALJ shall make specific findings of fact and conclusions of law resolving this issue.
We also hold that, for purposes of determining liability for future compensation benefits, the issue of last injurious exposure should be redetermined. ALJ Felter found the claimant sustained a last injurious exposure at Holiday Inn because walking on a carpeted floor "could have caused the osteoarthritis in both feet" if continued over a sufficient period of time. However, the question is whether claimant's duties at Holiday Inn "would" have caused osteoarthritis if continued over a sufficient period of time, not whether those duties "could" have caused the disease. A future finding concerning the last injurious exposure should apply this legal standard.
IT IS THEREFORE ORDERED that ALJ Felter's order dated October 17, 1996, is affirmed insofar as it determined the claim for compensation is not barred by the statute of limitations.
IT IS FURTHER ORDERED that the order of ALJ Felter, and the order of ALJ Rumler dated October 23, 1997, are set aside insofar as they determined the claimant sustained a last injurious exposure at Holiday Inn, and awarded medical benefits based on that determination. The matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
Copies of this decision were mailed April 8, 1998 to the following parties:
Helen K. Wilson, 14344 E. Kentucky Pl., #107, Aurora, CO 80012
Holiday Inn, Ted A. Krumreich, Esq., 1225 17th St., 28th Flr., Denver, CO 80202-5528
John V. FitzSimons, Esq. Gary Hale, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For Radisson CCIA)
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Roxanne Barnes, American Motorists Ins. Co., P.O. Box 5347, T.A., Denver, CO 80217-5347
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., Ste. 405, Denver, CO 80222 (For the Claimant)
Ted A. Krumreich, Esq. John M. Lebsack, Esq., 1225 17th St., 28th Flr., Denver, CO 80202-5528 (For Kemper Respondents)
By: __________________________________________________