Colorado Employer’s First Report of Injury and Other Preliminary Filings Do Not Toll Statute of Limitations
In Colorado, the statute of limitations applicable to the state’s Workers’ Compensation Act [Colo. Rev. Stat. § 8-43-103(2)] is not tolled by the filing of the employer’s first report of injury nor notice of contest, nor is it tolled by claimant’s service of interrogatories. Neither is it tolled by the claimant’s counsel’s entry of appearance, or even by the Division of Workers’ Compensation’s assignment of a claim number, held a state appellate court in Packard v. Indus. Claim Appeals Office, 2019 COA 146, 2019 Colo. App. LEXIS 1367 (Sept. 12, 2019). Rather, the statute requires a claimant to file a “notice claiming compensation,” a notification to both the Division and the opposing party of a claimant’s intent to seek compensatory benefits. Documents that fail to provide such information do not satisfy the statute.
Background
In July 2013, the claimant firefighter was diagnosed with melanoma of the trunk. On July 24, 2013, he advised the employer 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.
On August 7, 2013, the Division notified the claimant that a notice of contest had been filed. Part of the form letter to the claimant indicated that he could file for an expedited hearing and have an ALJ determine if benefits should be awarded. Another part of the letter stated that if the claimant had not filed a claim, he might wish to do so.
On October 6, 207, claimant filed an application in which he sought medical and temporary disability benefits. The employer eventually admitted Compensability, but asserted a statute of limitations defense, arguing that the claim was barred because the claimant filed his application more than four years after learning of his melanoma and reporting it to the employer.
ALJ and Division Panel Decisions
An ALJ concluded that the Division’s assignment of a claim number to the claim, along with the employer’s filing of the first report of injury and a notice of contest, demonstrated that the employer was on notice of the claim before the running of the statute of limitations. The Panel rejected this conclusion and set the ALJ’s order aside. The Panel determined that the various forms that had been filed did not put the employer or the Division on notice that claimant was claiming compensation for his occupational disease.
Appellate Court’s Decision
The appellate court agreed with the Panel. None of the documents to which the claimant pointed — not the notice of contest, the first report of injury, nor any of the documents his counsel filed — indicated that claimant was “claiming compensation” within the meaning of Colo. Rev. Stat. § 8-43-103(2), stressed the Court. Nor did any of the identified documents provide an impairment rating or indicate that claimant had sustained a permanent impairment. The Court acknowledged that if the employer did not file a first report of injury, the statute of limitations did not begin to run against the claimant. That, however, did not mean the statute was tolled by the employer’s filing.
The employer’s notice of contest contained no information about a claimant’s claim for indemnity or disability benefits. It simply advised the Division and the claimant that an insurer or employer believed the claim might not be covered for any number of reasons. Even the assignment, by the Division, of a claims number did not constitute notice of the claim. Finally, the Court stressed that § 8-43-103(1) imposed filing obligations on the part of the employer, while 8-43-103(2) applied to claimants.
The Court concluded that while the stated goal of the Workers’ Compensation Act was “to assure the quick and efficient delivery of disability and medical benefits to injured workers at a reasonable cost to employers, without the necessity of any litigation” [§ 8-40-102(1)], and the Court had earlier held that the Act was “intended to be remedial and beneficent in purpose, and should be liberally construed in order to accomplish these goals,” claimant had not provided any provision or holding that avoided the statute of limitations.