IN THE MATTER OF THE CLAIM OF: SUN PRINCE VALENTINE, Claimant,
v.
DILLINGHAM CONSTRUCTION HOLDING, Employer,
and
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Insurer, Respondents.
W.C. No. 5-102-177-001
Colorado Workers Compensation
Industrial Claim Appeals Office
March 19, 2021
WITHERS SEIDMAN RICE MUELLER GOODBODY PC, Attn: DAVID B
MUELLER ESQ, (For Claimant)
TREECE
ALFREY MUSAT PC, Attn: CHRISTOPHER P AHMANN ESQ, (For
Respondents)
REMAND
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Sidanycz (ALJ) dated December 29, 2020, that granted the
respondents' motion for summary judgment and dismissed
the matter with prejudice. We set aside the ALJ's order
and remand for further proceedings.
The
respondents filed a motion for summary judgement to dismiss
the claim pursuant to §8-43-103(2), C.R.S., due to the
claimant's failure to assert a claim for compensation
within two years of knowledge of a disability claim existing
in Colorado. The claimant filed a response contending that
the employer's failure to report the injury to the
Colorado Division of Workers' Compensation tolled the
statute of limitations and argued that there were disputed
issues of material fact. The ALJ entered an order based on
the following facts. On January 17, 1999, the claimant
sustained an injury in the course and scope of his employment
with respondents in the state of Texas. The ALJ found that
the respondents admitted for the claim through the Texas
State workers' compensation system.[1]
The
claimant reached maximum medical improvement (MMI) on August
24, 1999, and a provider assessed a seven percent whole
person impairment rating. The respondents challenged the
impairment rating. The ALJ found that the respondents filed a
proper notice of dispute in the state of Texas.[2] The ALJ
also found that the claimant did not undertake further
actions to prosecute his claim for compensation in the state
of Texas. The claimant continued to work for the respondent
employer in Texas in a modified employment situation. On
March 4, 2019, the claimant filed a Colorado Claim for
Compensation for the January 17, 1999, injury.
The ALJ
determined that the claimant, as a reasonable person, should
have recognized the probable compensable character of the
injury on January 17, 1999 and, pursuant to
§8-43-103(2), C.R.S., needed to give notice of a
Colorado claim for compensation within two years of January
17, 1999. The ALJ further found that the statute of
limitations was not tolled by the employer’s failure to
file with the Colorado Division of Workers’
Compensation because the employer filed a response to the
claim in...
