Opinion
W.C. No. 4-813-793.
July 19, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated April 21, 2010, that granted the respondent's Motion for Summary Judgment and dismissed with prejudice the claimant's claim for benefits. We affirm.
The respondent filed a Motion for Summary Judgment contending that the claimant had not filed a claim for compensation within the two year period outlined in § 8-43-103(2). The Motion for Summary Judgment was supported by exhibits, medical reports and an affidavit. The ALJ granted the respondent's motion entering factual findings based on the respondent's motion and documentation. The claimant appeals alleging he has evidence to present, which would contradict the contentions made by the respondent in its motion and supporting documentation. The claimant requests that the order granting the motion for summary judgment be reversed and a hearing be held so that he may present evidence. We are not persuaded to interfere with the ALJ's order.
OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts' Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Fera v. Industrial Claim Appeals Office 169 P.3d 231 (Colo. App. 2007); Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo. App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). We note that summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo. App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo. App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo. App. 1991).
In the context of summary judgment, we review the ALJ's legal conclusions de novo. See A.C. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). However, pursuant to § 8-43-301(8), C.R.S., we have authority to set aside an ALJ's order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law. Here, the question on review is generally whether applicable law supports the ALJ's grant of summary judgment on the ground that the claimant was barred by the applicable statute of limitations outlined. The claimant did not contend before the ALJ in response to the respondent's motion for summary judgment that there were disputed issues of fact involving the application of § 8-43-103(2). The claimant made no response to the respondent's motion for summary judgment. We conclude that the law supports the ALJ's order.
Section 8-43-103(2), C.R.S. provides that the right to workers' compensation is barred unless a formal claim is filed within 2 years of the injury. The statute of limitations begins when the claimant, as a reasonable person, knows or should have known the "nature, seriousness and probable compensable character of his injury," City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).
Section 8-43-103(2) further states that
"[I]n all cases in which 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 said articles [the Workers' Compensation Act], this statute of limitations shall not begin to run against the claim of the injured employee . . . until the required report has been filed with the division."
The employer's duty to "report said injury" to the division refers to the employer's statutory duties under § 8-43-101. Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo. App. 1987). Section 8-43-101(1), requires that "within ten days after notice or knowledge that an employee has contracted an occupational disease, or the occurrence of a permanently physically impairing injury, or lost-time injury to an employee," the employer must report the injury to the Division. A "lost time injury" is defined as one, which causes the claimant to miss more than three work shifts or three calendar days of work. Grant v. Industrial Claim Appeals Office, supra. An employer is deemed to have "notice" of an injury when the employer 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).
It is the claimant's burden to prove when the employer had sufficient knowledge to trigger the duties required by § 8-43-101(1). City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo. App. 2002) (burden of proof rests upon the party asserting the affirmative of a proposition). This is true because the tolling provisions create an exception to the claimant's duty to file a claim within two years of the injury. Procopio v. Army Navy Surplus, W. C. No. 4-465-076 (June 10, 2005).
Here the ALJ ruled on the respondent's unopposed motion for summary judgment after reviewing the motion and the attached exhibits and affidavit. The ALJ made the following pertinent findings. The claimant reported an injury that occurred on December 23, 2002, while working for the Department of Corrections. The claimant was provided medical treatment, and was placed at maximum medical improvement on February 3, 2003 with no permanent impairment. The claimant did not miss any time from work as a result of the condition, nor did he sustain any permanent impairment. The claimant was not paid any compensation as the result of his December 23, 2002 injury. The claimant knew, as of December 23, 2002, the nature and seriousness of his injury as evidence by the Colorado Department of Corrections Employee Consolidated Report form which the claimant completed. The claimant did not file a worker's claim for compensation. The claimant's application for hearing was filed on January 12, 2010, more than two years after the injury on December 23, 2002, and outside the statute of limitations outlined in § 8-43-103(2). The claimant did not show a reasonable excuse for his delay. The respondent was under no obligation to report the claimant's injury to the Division pursuant to § 8-43-101(1) on or after December 23, 2002, because the claimant never lost more than three shifts or calendar days from work as a result of the injury. Therefore, the statute of limitations under § 8-43-103(2) was not tolled by any alleged failure to report the injury.
The claimant does not contend on appeal that any of the above findings were not supported by the medical reports, exhibits or the affidavit filed with the respondent's Motion for Summary Judgment. In any event, we conclude that the ALJ properly determined under the undisputed evidence in the record at the time of his order that the claimant failed to file a claim within the two year statute of limitations provided for in § 8-43-103(2). Rather the claimant contends he sent paperwork of over 100 pages to show that a claim was filed and that he has lost hearing in his left ear. The claimant contends that the respondents waived the statute of limitations because they led him to believe that his claim was not closed.
In general we note that in his Petition to Review the claimant now raises a number of factual issues. However, parties are expected to submit their evidence before the ALJ. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). The claimant's representations in his petition to review may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo. App. 1987). Therefore, we may not consider the effect of factual issues newly raised by the claimant in his petition to review.
Moreover, as noted above, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. The burden of establishing the nonexistence of a genuine issue of material fact rests with the movant. Once the moving party has met this burden, however, the burden shifts to the nonmoving party to establish that a triable issue of fact exists. See Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708, 712-13 (Colo. 1987). To meet this shifted burden, a nonmovant may not rest upon the pleadings, but must present specific facts demonstrating the existence of disputed facts. Brown v. Teitelbaum, 830 P.2d 1081, 1084-85 (Colo. App. 1991) ("[A] genuine issue of material fact cannot be raised simply by allegations of pleadings or argument of counsel. Rather, in response to a motion for summary judgment, an adverse party must by affidavit or otherwise set forth specific facts showing there is a genuine issue for trial.").
C.R.C.P. 56(e) provides that:
When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of the opposing party's pleadings, but the opposing party's response by affidavits or otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial, If there is no response, summary judgment, if appropriate, shall be entered.
Here the claimant made no response to the respondent's motion for summary judgment supported by affidavit and otherwise and the respondent as the moving party established that no material fact was in dispute. Therefore, the burden of proving the existence of a factual dispute shifted to the claimant. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo. App. 1991). In our view, the claimant failed to satisfy this burden by merely making allegations on appeal of the existence of genuine issues of disputed fact needed to be resolved at a hearing.
IT IS THEREFORE ORDERED that the ALJ's order dated April 21, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant THIS PAGE INTENTIONALLY LEFT BLANK
ALVIN SAIS
ALVIN SAIS, CO, (Claimant).
DEPARTMENT OF CORRECTIONS, Attn: PATSY MICHAUD, CO, (Employer).
RITSEMA LYON, Attn: NANCY C. HUMMELL, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: SHANNON MCGINNISS, DENVER, CO, (Other Party).