Opinion
W.C. No. 4-717-784.
November 21, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) mailed on July 3, 2007 that denied and dismissed the respondents' affirmative defense of the statute of limitations and ordered the respondents to pay the costs of the knee surgery to be performed by Dr. Papillion. We reverse the award of medical benefits.
The ALJ's pertinent findings of fact are as follows. The claimant sustained a compensable injury to her right knee on February 26, 2004 while working as a waitress for the employer. (The ALJ's order, at page 2, paragraph 1, refers to "February 26, 2007;" however, the reference to 2007 appears to be a typographical error.) On March 16, 2004 the payroll manager with the employer prepared an employer's first report of injury. However, the report was never filed with the Division of Workers' Compensation because the employer relied on provisions of the Workers' Compensation Act that allow an employer to pay medical benefits without filing an admission if there are no more than three days of temporary disability. The insurer paid past medical benefits related to the claimant's right knee injury. On February 22, 2007, the claimant wrote a letter to the insurer requesting authorization of a right knee MRI that was prescribed on or before November 1, 2006.
The claimant filed a workers' claim for compensation with the Division on March 13, 2007. On March 27, 2007, the insurer filed a notice of contest asserting the affirmative defense of the statute of limitations. The ALJ found that because the claimant's claim for compensation was not filed with the Division until March 13, 2007, more than two years after the injury date, the respondents had met their burden of proof by establishing a prima facie case that the claimant's claim was barred by the statute of limitations. However, the ALJ also found that the claimant had proven by a preponderance of the evidence that the employer failed to file a first report of injury at any time.
The ALJ therefore determined that the statute of limitations was tolled by operation of § 8-43-103(2), C.R.S. 2007. He rejected the respondents' argument that because this claim involved a "no lost time" injury there was no requirement to file an employer's first report. The ALJ reasoned that the plain language of § 8-43-103(2) provides that in all cases the statute of limitations does not begin to run against the claim of the injured employee until the required report has been filed with the division. The ALJ determined that the plain language indicates that this section applies to all cases, not just lost-time cases or cases involving permanent impairment.
We initially note that the claimant contends that the order only denied and dismissed the respondents' affirmative defense of the statute of limitations and therefore the respondents' appeal should be dismissed for lack of a final order. We disagree. Section 8-43-301(2), C.R.S. 2007 provides that any dissatisfied party may file a petition to review "an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty." An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
The parties stipulated that if the statute of limitations was found not to bar the claim then the respondents would authorize the surgery recommended by Dr. Papillion. Tr. at 4. The ALJ's order approved the parties' stipulation and ordered the respondents to pay the cost of the knee surgery to be performed by Dr. Papillion. In the circumstances of this case, because of the stipulation and the order for payment of specific medical benefits, the order is final. See Lemaster v. Dutch Brothers Flower Market-DU, Inc., W. C. No. 4-619-736 (January 05, 2006); Vigil v. Holcim Inc., W. C. Nos. 4-435-795 and 4-530-490 (April 21, 2005).
On appeal the respondents argue that the finding that the employer failed to file a first report of injury, where the employer was without notice that the claimant had contracted a lost-time injury, does not support the determination that the statute of limitations was tolled. We agree.
Section 8-43-103(2), C.R.S. 2007, provides that the right to workers' compensation benefits is barred unless a formal claim is filed within two years after the injury. Section § 8-43-103(2) further provides that this statute of limitations shall not begin to run against the claim of the injured employee in 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 the Workers' Compensation Act, until the required report has been filed with the Division.
The claimant bears the burden of establishing that the statute of limitations was tolled. Grant v. Industrial Claim Appeals Office, 740 P.2d 530, 532 (Colo.App. 1987). The statutory reporting requirement at issue arise from § 8-43-101, C.R.S. 2007. See Grant, 740 P.2d at 531 (construing predecessor statute). Subsection (1) of that statute requires that "[w]ithin 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 shall, in writing, . . . report said occupational disease disability, permanently physically impairing injury, lost-time injury, or fatality to the division." A "lost time injury" is defined as one that causes the claimant to miss more than three work shifts or three calendar days of work, and the employer's notice is measured by the "reasonably conscientious manager" standard. Grant v. Industrial Claim Appeals Office, supra; Jones v. Adolph Coors Co. 689 P.2d 681 (Colo.App. 1984).
In this case, the parties litigated whether the statute of limitations was tolled by the employer's failure to file a first report of injury. The claimant did not dispute the date of injury. Cf. City of Boulder v. Payne, 162 Colo. 345, 351-52, 426 P.2d 194, 197 (1967) (statute of limitations does not begin to run until claimant, as a reasonable person, knows or should have known "nature, seriousness and probable compensable character of his injury"). Instead, the claimant asserted that the statute of limitations failed to run against her claim unless the employer filed a first report of injury. Tr. at 30.
The ALJ made a corresponding determination that the statute of limitations was tolled because the respondents had not filed the employer's first report. It is clear the ALJ did not consider the claim to have been a "lost-time" case. The ALJ explicitly determined in his interpretation of the statute that in all cases, as opposed to "lost-time cases or cases involving permanent impairment," where a first report is not filed the statute of limitations is tolled. Findings of Fact, Conclusions of Law, and Order at 5, ¶ (g). Thus, the respondents failed to file a first report of injury in a "no lost time" case with no indication that the employer had notice or knowledge of a permanent physical impairment. We therefore conclude that there was no tolling of the applicable statute of limitations. Grant v. Industrial Claim Appeals Office, supra. The ALJ's determination to the contrary must be set aside and the order that the respondents pay for knee surgery is reversed. Section 8-43-301(8), C.R.S. 2007.
IT IS THEREFORE ORDERED that the ALJ's order mailed on July 3, 2007, is reversed insofar as it awarded the payment of knee surgery.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
BENINA PIERCE-KOUYATE, AURORA, CO, (Claimant).
WILSON'S OF COLORADO LTD, C/O: d/b/a WHITE FENCE FARM, DENVER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
JANICE M GREENING, LLC, Attn: JANICE M GREENING, ESQ, ENGLEWOOD, CO, (For Claimant).
RITSEMA LYON, P.C., Attn: SEAN KNIGHT, ESQ., DENVER, CO, (For Respondents).