IN THE MATTER OF THE CLAIM OF: JOSEPH PACKARD, Claimant,
v.
CITY AND COUNTY OF DENVER, Employer,
and
SELF INSURED, Respondent.
W.C. No. 4-925-466-02
Colorado Workers Compensation
Industrial Claim Appeals Office
December 4, 2018
LAW
OFFICE OF OTOOLE & SBARBARO PC, Attn: NEIL D OTOOLE ESQ,
(For Claimant)
OFFICE
OF THE CITY ATTORNEY, Attn: JP MOON ESQ, C/O: EMPLOYMENT AND
LABOR LAW SECTION, (For Respondents)
FINAL ORDER
The
respondent seeks review of an order of Administrative Law
Judge Michelle E. Jones (ALJ) dated April 4, 2018, that
determined that the claimant’s application for hearing
is not barred by the statute of limitations under §
8-43-103(2), C.R.S. We reverse.
The
findings of fact in this claim are essentially uncontroverted
and are summarized below. The claimant is employed as a
firefighter. On June 13, 2013, the claimant attended an
evaluation with Dr. Silverman after noticing a new mole on
his back. The shave biopsy of the mole revealed that the
lesion was melanoma. The melanoma was successfully excised by
Dr. Vaughn on July 3, 2013.
On July
24, 2013, claimant reported to the employer that he had been
diagnosed with melanoma that he believed was work related. On
August 5, 2013, the respondent filed an Employer’s
First Report of Injury (FROI) with the Division of
Workers’ Compensation (Division). The Division assigned
a case number to the claim. On August 6, 2013, the respondent
filed a Notice of Contest with the Division. On August 7,
2013, the Division sent a letter to claimant indicating that
a Notice of Contest had been filed denying liability for the
claim. The letter provided instructions on requesting a
hearing or an expedited hearing.
On July
18, 2014, Dr. Mayer authored a causation report, opining that
the melanoma was work related. Dr. Mayer also found that the
claimant was at maximum medical improvement (MMI) and
assigned an 11% whole person permanent impairment rating. On
May 10, 2017, the claimant was again evaluated by Dr. Mayer
who opined that the claimant was still in remission and
remained at MMI.
On
September 1, 2017, claimant filed an application for hearing
with the Office of Administrative Courts. Parenthetically, we
have previously held that an application for hearing may
constitute a sufficient notice of claim for purposes of the
statute of limitations. Enright v. Super Value
Stores, W.C. No. 3-198-836 (June 30, 1995). See also
Valerie Fox v. CUC Internat’l Inc., W.C. No.
4-268-469 (January 29, 1999). The ALJ noted that the claimant
had not filed either a workers’ claim for compensation
or an application for hearing within two years after the date
of injury.
Hearing
was held on March 8, 2018, on the issues of whether the
claimant’s application for hearing was barred by the
statute of limitations and whether there was compliance with
the requirements of § 8-43-103(2), C.R.S., which
requires the filing of a notice claiming compensation with
the Division within two years after an injury. The parties
stipulated that should the ALJ determine that the claim was
not time barred, respondent agreed to file a general
admission of liability and pay reasonable and necessary
medical benefits including the July 3, 2013 surgery and the
co-pay of $100.00.
The ALJ
determined that the forms filed by the respondent with the
Division, specifically the FROI and the Notice of Contest,
served as proper notice of a claim under § 8-43-103(2),
C.R.S., and held that the claimant’s application for
hearing was not time barred by the statute of limitations.
The ALJ ordered, pursuant to the stipulation, the respondent
to file a general admission of liability, pay medical
benefits, and reimburse co-pay benefits to the claimant.
The
respondent has appealed, arguing that neither the
respondent’s FROI nor its Notice of Contest constitute
“a notice claiming compensation” as required by
§ 8-43-103(2), C.R.S. We agree.
The
statutory requirements for providing notice of an injury to
the Division are set forth in § 8-43-103(1), C.R.S., as
pertinently quoted below:
Notice of an injury, for which compensation and benefits are
payable, shall be given by the employer to the division and
insurance carrier … within ten days after the
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