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, ...