4-241-443 (1998). EILEEN M. EMRICH.
Case Date | October 27, 1998 |
Court | Colorado |
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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