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Industrial Claim Appeals Office of the State of Colorado, WC
No. 4-925-466
Law
Office of OToole and Sbarbaro, P.C., Neil D. OToole,
Denver, Colorado, for Petitioner
Philip
J. Weiser, Attorney General, Evan P. Brennan, Assistant
Attorney General, Denver, Colorado, for Respondent Industrial
Claim Appeals Office
Kristin
M. Bronson, City Attorney, J.P. Moon, Assistant City
Attorney, Stephen J. Abbott, Assistant City Attorney, Denver,
Colorado, for Respondent City and County of Denver
OPINION
ROMÁN,
JUDGE
Page 476
[¶1]
In this workers compensation action, we are asked to address
whether certain documents constitute a "notice of
injury" such that claimant, Joseph Packard, beat the
statute of limitations of the Workers Compensation Act of
Colorado (Act), set forth in section 8-43-103(2), C.R.S.
2018. We agree with the Industrial Claim Appeals Office
(Panel) that neither a notice of contest nor a first report
of injury satisfies the statute of limitations and that to
satisfy the statutory mandate a document must notify the
Division of Workers Compensation (Division) and the opposing
party that a claimant is "claiming compensation"
within the meaning of the statute. We therefore affirm the
Panels final order.
I.
Background
[¶2]
Claimant is a firefighter for the City and County of Denver.
In July 2013, he was diagnosed with melanoma of the trunk. On
July 24, 2013, he advised the City of his cancer diagnosis
and asserted his belief that the melanoma was related to or
caused by his work as a firefighter for the City. The City
filed its first report of injury with the Division on August
5, 2013. The next day, the City filed a notice of contest
indicating it needed to further review the claim and
claimants medical records.
[¶3]
On August 7, 2013, the Division notified claimant that a
notice of contest had been filed. The Divisions form letter
to claimant included the following language:
Because your claim for benefits has been denied, you may file
for an expedited hearing and have an Administrative Law Judge
decide if benefits should be awarded. You must file an
Application for Expedited Hearing within forty-five (45) days
from the date on the Notice of Contest form. If you request a
hearing after this date, your hearing will be held between 80
and 100 days after a hearing date is set.
* * * * *
If you have not filed a Workers Claim for Compensation,
you may wish to do so.
[¶4]
One year after claimants diagnosis, Dr. Annyce Mayer, a
physician with National Jewish Health Medical, concluded that
claimant was at maximum medical improvement (MMI) "with
a 10% whole person impairment." She opined that there is
"increasing epidemiologic evidence for increased risk of
melanoma in firefighters, particularly in [claimants] age
group." Weighing claimants occupational and
nonoccupational risk factors for developing melanoma, Dr.
Mayer concluded that "his increased risk for melanoma
due to non-occupational risk factors does not establish the
cause for his developing malignant melanoma on a medically
probable basis."
[¶5]
In May 2017, Dr. Mayer followed up her initial opinion with a
supplemental report. She concluded that claimants
"melanoma meets the medical requirements of the Colorado
Firefighter Presumption Statute, [section] 8-41-209, C.R.S.
[2018,] ... and that his underlying risk factors do not
render it more probable that his melanoma arose from a source
outside of the workplace, to a reasonable degree of medical
probability." She also opined that claimants melanoma
remained in remission.
[¶6]
Claimant filed an application for hearing on October 6, 2017,
seeking medical and temporary total disability benefits. The
City eventually admitted compensability, but asserted a
statute of limitations defense, arguing that the claim was
barred because claimant filed his application more than four
years after learning of his melanoma and reporting it to the
City.
[¶7]
An administrative law judge (ALJ) concluded that the
Divisions assignment of a claim number to the claim, along
with the Citys filing of the first report of injury and a
notice of contest, demonstrated that the City
Page 477
was on notice of the claim before the running of the statute
of limitations.
[¶8]
But the Panel rejected this conclusion and set aside the
ALJs order. The Panel instead held that neither the first
report of injury nor the notice of contest satisfied
claimants statutory obligation to file a "notice
claiming compensation." Likewise, the Panel held, the
Divisions assignment of a claim number to the case could not
"substitute for the filing of a workers claim for
compensation." The Panel observed that none of these
actions — the filing of the first report of injury, the
filing of the notice of contest, or the assignment of a claim
number — indicated whether "the claimant had
missed any time from work, was alleging any permanent
impairment, or was seeking medical treatment." In short,
the Panel held, the forms did not put the City or the
Division on notice that claimant was claiming compensation
for his occupational disease.
II.
Statute of Limitations
[¶9]
Claimant contends that the Panel misinterpreted the
applicable statute of limitations, section 8-43-103(2). He
argues that the City had adequate notice of his intent to
pursue compensation through the Divisions assignment of a
claim number to the case, the Citys filing of the first
report of injury and notice of contest, and his filing of
several documents. He identifies several documents his
counsel filed on his behalf on February 4, 2015, which, he
asserts, fulfilled his notice obligation: (1) a notice
pursuant to section 8-41-203(4), C.R.S. 2018,[1] stating that
his injuries arose "from an injury and/or occupational
disease occurring on 7/24/2013"; (2) a notice of
objection to verbal communications with claimant, treating
physicians, or healthcare providers; (3) combined ongoing
production requests and interrogatories; (4) an objection to
admissions; and (5) his counsels entry of appearance. We are
not persuaded that the Panel misinterpreted or misapplied the
statute.
A.
Applicable Statute: C.R.S. 8-43-103
[¶10]
The Act imposes notice requirements and a general statute of
limitations which applies to nearly all requests for
compensation and benefits pursued thereunder. See §
8-43-103. The relevant portions of the statute provide as
follows:
(1) Notice of an injury, for which compensation and benefits
are payable, shall be given by the employer to the division
and insurance carrier, unless the employer is self-insured,
within ten days after the injury .... If no such notice is
given by the employer, as required by articles 40 to 47 of
this title, such notice may be given by any person. Any
notice required to be filed by an injured employee ... may be
made and filed by anyone on behalf of such claimant and shall
be considered as done by such claimant if not specifically
disclaimed or objected to by such claimant in writing filed
with the division within a reasonable time. Such notice shall
be in writing and upon forms prescribed by the division for
that purpose and served upon the division by delivering to,
or by mailing by registered mail two copies thereof addressed
...