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Packard v. Industrial Claim Appeals Office of State

Court of Appeals of Colorado, Fourth Division

September 12, 2019

Joseph Packard, Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and City and County of Denver, Colorado, Respondents.

          Industrial Claim Appeals Office of the State of Colorado WC No. 4-925-466

          Law Office of O'Toole and Sbarbaro, P.C., Neil D. O'Toole, 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

         ¶ 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 Panel's 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 claimant's medical records.

         ¶ 3 On August 7, 2013, the Division notified claimant that a notice of contest had been filed. The Division's 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 claimant's 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 [claimant's] age group." Weighing claimant's 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 claimant's "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 claimant's 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 Division's assignment of a claim number to the claim, along with the City's filing of the first report of injury and a notice of contest, demonstrated that the City 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 ALJ's order. The Panel instead held that neither the first report of injury nor the notice of contest satisfied claimant's statutory obligation to file a "notice claiming compensation." Likewise, the Panel held, the Division's 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 Division's assignment of a claim number to the case, the City's 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 counsel's 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 to, the division at its office in Denver, Colorado. Upon receipt of such notice from a claimant, the division shall immediately mail one copy thereof to said employer or said employer's agent or insurance carrier.
(2) The director and administrative law judges employed by the office of administrative courts shall have jurisdiction at all times to hear and determine and make findings and awards on all cases of injury for which compensation or benefits are provided by articles 40 to 47 of this title. . . . [T]he right to compensation and benefits provided by said articles shall be barred unless, within two years after the injury . . . a notice claiming compensation is filed with the division. This limitation shall not apply to any claimant to whom compensation has been paid or if it is established to the satisfaction of the director within three years after the injury or death that a reasonable excuse exists for the failure to file such notice claiming compensation and if the employer's rights have not been prejudiced thereby, and the furnishing of medical, surgical, or hospital treatment by the employer shall not be considered payment of compensation or benefits within the meaning of this section; but, in all cases in which the employer has been given notice of an injury and fails, ...

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