Summary
In Emrich the ALJ expressly relied upon the fact that the Division had sent to the claimant correspondence specifically advising her to "file a notice of claim to preserve her right to benefits."
Summary of this case from In re Butler, W.C. NoOpinion
W.C. No. 4-241-443
October 27, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wells (ALJ) which determined her claim is barred by the statute of limitations. We affirm.
Section § 8-43-103(2), C.R.S. 1998, states:
"[T]he right to compensation and benefits provided by [the Workers' Compensation Act] shall be barred unless, within two years after the injury or after death resulting therefrom, a notice claiming compensation is filed with the division."
However, the two-year limitation does not apply if, within three years of the injury the claimant establishes a reasonable excuse for failing to file the claim. Furthermore, the statute of limitations does not commence 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).
Here, the claimant suffered a knee injury on January 10, 1995, when she was leaving her job with the employer and walking through Montgomery Wards. The claimant reported the injury to the employer which filed a First Report of Injury and Notice of Contest, denying liability for the injury. The claimant testified that based upon the Notice of Contest, she did not pursue a workers' compensation claim. On March 1, 1995, the Division of Workers' Compensation sent a letter to the claimant advising her that a Notice of Contest had been filed and advising her to file a notice of claim to preserve her right to benefits.
In the meantime, the claimant hired an attorney to represent her in a liability claim against Montgomery Wards. During litigation, Montgomery Wards asserted a defense which prompted the claimant to pursue workers' compensation benefits. The record does not contain a formal claim for workers' compensation. However, it is undisputed the claimant filed a claim for workers' compensation outside the two-year statute of limitations, but within three years of the injury.
The ALJ determined that the statute of limitations began to run in January 1995. The ALJ also found that the claimant failed to establish a reasonable excuse for failing to file a claim within two years. Therefore, the ALJ denied and dismissed the claim.
I.
On review, the claimant first contends that she did not recognize the probable compensable character of the injury until the summer of 1996, because the injury occurred after work and off the employer's premises, she returned to work and the employer denied liability, and her attorney pursued a personal injury claim against Montgomery Wards instead of a workers' compensation claim. The claimant also contends the ALJ failed to consider this evidence in finding that the statute of limitations commenced in January 1995. We disagree.
For purposes of the statute of limitations, a "compensable" injury is one which is disabling, and entitles the claimant to compensation in the form of disability benefits. See § 8-43-103(2), C.R.S. 1998 (medical benefits do not constitute compensation for purposes of the statute of limitation); City of Boulder v. Payne, supra; Romero v. Industrial Commission, 632 P.2d 1052 (Colo.App. 1981). To recognize the "probable compensable character" of an injury, the claimant must be aware that the injury is disabling and thus could entitle her to disability benefits. Temporary disability benefits are payable if the injury causes the claimant to miss more than three shifts from work. Section 8-42-103(1)(a), C.R.S. 1998; City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo.App. 1998); Grant v. Industrial Claim Appeals Office, 740 P.2d 530 (Colo.App. 1987).
The determination of when the claimant recognized the probable compensable character of the injury is a question of fact for resolution by the ALJ. Therefore, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Here, the claimant testified that she was medically released to return to work three days after the injury. However, she further testified that it was three weeks before she was able to go back to work for the employer. (Tr. pp. 7-8). Based upon this testimony, the ALJ reasonably could, and did, infer that the claimant recognized the probable compensable character of the injury in January 1995. See Tr. p. 31; CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered in reviewing the basis for the written order). Therefore, we need not consider whether the record contains evidence which, if credited, might support a contrary result. F.R. Orr Construction v. Rinta, supra.
II.
Alternatively, the claimant contends that a reasonable excuse for failing to file a claim is "presumed" to exist where the employer notifies the claimant that the injury is not compensable. In support, the claimant cites Prager v. Lakeridge Theater, 438 P.2d 408 (Colo.App. 1971) (not selected for publication), and City and County of Denver v. Phillips, 443 P.2d 379 (Colo. 1968). The claimant contends that she did not file a claim within two years of the injury because she erroneously relied upon the employer's Notice of Contest to believe her injury was not compensable. Therefore, the claimant contends the ALJ erroneously found that she failed to establish a reasonable excuse for failing to file a claim within two years of the injury. We perceive no error.
A reasonable excuse for failing to file a claim may exist where the employer misleads the claimant into believing that an injury is not compensable. City and County of Denver v. Phillips, 443 P.2d 379 (1968); Colorado Fuel Iron Corp. v. Industrial Commission, 129 Colo. 287, 269 P.2d 696 (1954); Prager v. Lakeridge Theater, supra.. In Phillips, the claimant testified that he did not timely file a claim because he relied upon a superior employee's statement that it would do "no good" to file a claim. The Phillips court concluded that the claimant's reliance was sufficient to support the finding of a reasonable excuse. Id at 383. In Prager, the claimant testified that she did not timely file a claim because the workers' compensation insurer sent her a letter advising her that she had no right to compensation. The court remanded the matter for a determination of whether the claimant established a reasonable excuse. However, nothing in Prager or Phillips holds that a reasonable excuse is "presumed" or deemed to exist whenever the employer asserts that the injury is not compensable.
Rather, the determination of whether the claimant has sustained her burden to prove a reasonable excuse for failing to file a claim is a matter within the discretion of the ALJ. See Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970). We cannot interfere with an ALJ's exercise of discretion unless it "exceeds the bounds of reason," and resolution of this issue includes consideration of whether the ALJ's determination is supported by substantial evidence and the applicable law. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). We are not persuaded there was any abuse of discretion here.
The record supports the ALJ's determination that the respondents had not "misled" the claimant by filing a Notice of Contest. Section 8-43-203(1)(a), C.R.S. 1998 provides that the employer must to file a notice admitting or denying liability when it becomes aware of an injury which disables an employee for more than three work shifts. Thus, the respondents' actions in filing the Notice of Contest were in accordance with their statutory duties under the Workers' Compensation Act. Furthermore, the March 1 letter from the Division of Workers' Compensation expressly advised the claimant to file a claim to "protect" her right to prosecute a claim for compensation. Under these circumstances, the evidence does not compel a conclusion that the respondents were somehow culpable for the claimant's lack of knowledge regarding her legal rights.
Moreover, a mistake of law is not a reasonable excuse for a party's failure to assert a legal right. See Larson, Workers' Compensation Law, Ch. 15, § 78.47 (1998); Jensen v. Jensen, 92 Colo. 169, 18 P.2d 1016 (1933). Consequently, the claimant's lack of knowledge concerning her right to file a claim is insufficient to establish a reasonable excuse for her failure to file a notice of claim within two years of the injury. See Ramos v. Sears Roebuck Co., W.C. No. 4-156-827 (February 10, 1994).
An attorney's negligence in advising someone not to file a workers' compensation claim may constitute a reasonable excuse. State Compensation Insurance Fund v. Foulds, 445 P.2d 716 (Colo. 1968). However, we reject the claimant's contention that the ALJ erred in finding the claimant failed to establish negligence by her former attorney.
As found by the ALJ, the claimant did not present evidence of any negligence on the part of her former attorney. She did not present any evidence that the attorney advised her not to file a workers' compensation claim or that she relied upon any representations by the attorney in failing to file the claim. To the contrary, the claimant testified that she hired the attorney for the purpose of having her medical expenses paid for by Montgomery Wards and that the attorney recommended she file a workers' compensation claim after Montgomery Wards asserted a statutory employer defense in the personal injury case. (Tr. pp 12-13, 19-20). Thus, there was no error in the ALJ's determination that the evidence was insufficient to determine whether the attorney was negligent. (Tr. p. 32); CAN-USA Construction, Inc. v. Gerber, supra.
The claimant's further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated August 28, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 27, 1998 to the following parties:
Eileen M. Emrich, 132 Davie Dr., Security, CO 80911
Jackson Hewitt Tax Service, 4575 Bonney Rd., Virginia Beach, VA 23462-3831
The Travelers Insurance Co., Attn: Cherry S. Rorex, P. O. Box 173762, Denver, CO 80217-3762
Kenneth J. Shakeshaft, Esq., Gordon J. Williams, Esq., 1530 S. Tejon, Colorado Springs, CO 80906 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: _______________________