Opinion
W.C. No. 4-351-855
November 2, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) insofar as he determined the claim for medical benefits is not barred by the statute of limitations. The respondents argue the record lacks substantial evidence to support the ALJ's finding that the claimant did not recognize the "seriousness" of his injury until 1996, approximately ten years after he sustained a "needle stick" which caused hepatitis C. We affirm.
On November 21, 1986, the claimant sustained a needle stick while performing his duties as a paramedic. The claimant reported the incident to the employer on November 25, 1986.
In January and February 1987, the claimant experienced "flu like symptoms." By April 1997, the claimant was diagnosed with "non-A non-B" hepatitis. The claimant lost no time from work, although he was unable to perform some physical training exercises. The claimant testified that over several months, his liver function tests "dropped back towards what they considered normal" and no treatment was prescribed. (Tr. pp. 36-37).
In 1994, the claimant was first diagnosed with hepatitis C, but again no specific treatment was recommended. However, in late 1996, one of the claimant's colleagues advised the claimant that hepatitis C could remain dormant without symptoms, then suddenly become symptomatic and progress to liver failure. (Tr. p. 42).
The respondents argued the claim for medical benefits is barred by the three-year statute of limitations found at former § 8-52-105(2), C.R.S. However, the ALJ found the claimant did not become aware of the "seriousness" of his condition until 1996, when he learned that hepatitis C may suddenly progress to liver failure. Consequently, the ALJ ruled the claim is not barred by the statute of limitations because the matter proceeded to hearing in 1998, well within the three-year period of limitation.
On review, the respondents contend the evidence does not support the ALJ's finding the claimant did not recognize the "seriousness" of his condition until 1996. In support of this proposition, the respondents cite evidence that in 1986 the claimant reported the needle stick, and he was aware the stick could cause infectious diseases including HIV and hepatitis B. The respondents also rely on evidence the claimant was diagnosed with non-A non-B hepatitis in 1987, and believed this condition was caused by the needle stick. Further, the respondents point out the claimant underwent a liver ultrasound in 1989, and was considered for a possible liver biopsy. Finally, the respondents argue it is "irrelevant" the claimant was not actually diagnosed with hepatitis C until 1994. We disagree with these arguments.
It is well-established the statute of limitations does not begin to run until the claimant recognizes the "nature, seriousness and probable compensable character of his injury." City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). The requirement that the claimant recognize the "seriousness" of the injury contemplates the claimant will recognize the gravity of the medical condition, and obviates the necessity for employees to "rush in with claims for every minor ache, pain, or symptom." 7 Larson's Workers' Compensation Law, § 78.41(e). Thus, our courts have held that where a claimant was aware of an industrial back injury, but unaware the injury might later cause a disc herniation, the claimant did not recognize the seriousness of the injury until the herniation was discovered. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Intermountain Rubber Industries v. Valdez, 688 P.2d 1133 (Colo.App. 1984). In both Dunagan and Valdez the claimants returned to employment following the industrial injuries, although it appears the claimant in Dunagan missed some time from work. Although a precise diagnosis is not essential, the opinions of treating physicians, as communicated to the claimant, are relevant in determining when the claimant recognized seriousness of the injury. 7 Larson's Workers' Compensation Law, § 78.41(e).
Ultimately, the question of when the claimant recognized the nature, seriousness, and probable compensable nature of the injury is one of fact for determination by the ALJ. See Industrial Commission v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000; Intermountain Rubber Industries v. Valdez, supra. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ was not required to enter specific findings rejecting evidence which he found to be unpersuasive. Magnetic Engineering, Inc.v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 99CA1380, June 8, 2000).
The respondents' assertions notwithstanding, substantial evidence supports the ALJ's determination the claimant did not recognize the "seriousness" of his injury until late 1996. Although the claimant was diagnosed with an unnamed variety of hepatitis in 1987, and was again evaluated for this condition in 1989, the record does not indicate the claimant was made aware of the potentially catastrophic consequences of the disease. Indeed, as the claimant testified, no specific treatment was recommended other than avoiding alcoholic beverages and monitoring his liver enzymes. When examined in 1989, the claimant's liver ultrasound was reported as normal, and a liver biopsy was deferred. A physician's note dated December 28, 1989, suggests the physician had no reason to suspect the claimant was suffering from chronic active hepatitis (CAH), and this was "discussed" with the claimant. (see Orent Depo. p. 23-24). Thus, the claimant testified that prior to the conversation with his colleague in 1996, he felt he had escaped the needle stick "with relatively minor symptoms and damage to [his] liver," and no physician explained to him that his condition could adversely affect him for the rest of his life, or might shorten his life. (Tr. p. 86). Further, Dr. Orent testified that in 1989 it was thought a patient could suffer from "chronic persistent hepatitis," a condition in which the virus is present in the liver, "but no damage is taking place." (Orent Depo. p. 24).
The evidence cited by the respondents does not compel a contrary conclusion. Although there is some evidence from which the ALJ might have inferred the claimant was aware of the "seriousness" his condition prior to 1996, the ALJ implicitly rejected such evidence. On this record, and giving due weight to the ALJ's resolution of conflicts in the evidence, we hold the evidence supports the finding the claimant did not recognize the seriousness of his condition until he was advised of its life-threatening potential in late 1996.
IT IS THEREFORE ORDERED that the ALJ's order dated March 23, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed November 2, 2000 to the following parties:
Richard P. Taylor, 6378 E. Mineral Dr., Denver, CO 80112
City of Littleton, 2255 W. Berry Ave., Littleton, CO 80120-1151
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
Floyd M. Youngblood, Esq., 4465 Kipling, #102, Wheat Ridge, CO 80033 (For Claimant)
Stephen A. Jones, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy