4-241-443 (1998). EILEEN M. EMRICH.

Case DateOctober 27, 1998
CourtColorado
Colorado Workers Compensation 1998. 4-241-443 (1998). EILEEN M. EMRICH INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF EILEEN M. EMRICH, Claimant, v. JACKSON HEWITT TAX SERVICE, Employer, and THE TRAVELERS INSURANCE COMPANY, Insurer, Respondents.W. C. No. 4-241-443FINAL ORDER The claimant seeks review of an order of Administrative Law Judge Wells (ALJ) which determined her claim is barred by the statute of limitations. We affirm. Section § 8-43-103(2), C.R.S. 1998, states: "[T]he right to compensation and benefits provided by [the Workers' Compensation Act] shall be barred unless, within two years after the injury or after death resulting therefrom, a notice claiming compensation is filed with the division." However, the two-year limitation does not apply if, within three years of the injury the claimant establishes a reasonable excuse for failing to file the claim. Furthermore, the statute of limitations does not commence until the claimant, as a reasonable person, "should recognize the nature, seriousness and probable compensable character of the injury." City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967). Here, the claimant suffered a knee injury on January 10, 1995, when she was leaving her job with the employer and walking through Montgomery Wards. The claimant reported the injury to the employer which filed a First Report of Injury and Notice of Contest, denying liability for the injury. The claimant testified that based upon the Notice of Contest, she did not pursue a workers' compensation claim. On March 1, 1995, the Division of Workers' Compensation sent a letter to the claimant advising her that a Notice of Contest had been filed and advising her to file a notice of claim to preserve her right to benefits. In the meantime, the claimant hired an attorney to represent her in a liability claim against Montgomery Wards. During litigation, Montgomery Wards asserted a defense which prompted the claimant to pursue workers' compensation benefits. The record does not contain a formal claim for workers' compensation. However, it is undisputed the claimant filed a claim for workers' compensation outside the two-year statute of limitations, but within three years of the injury. The ALJ determined that the statute of limitations began to run in January 1995. The ALJ also found that the claimant failed to establish a reasonable...

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