In re Claim of Valentine, 031921 COWC, 5-102-177-001

Docket NºW.C. 5-102-177-001
Case DateMarch 19, 2021
CourtColorado
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...

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