City of Durango v. Dunagan, No. 96CA0973

• Docket Nº: No. 96CA0973
• Citation: 939 P.2d 496
• Case Date: May 01, 1997
• Court: Court of Appeals of Colorado

Page 496

939 P.2d 496 21 Colorado Journal 641 CITY OF DURANGO and Colorado Intergovernmental Risk Sharing
Agency, Petitioners,
v.
Randy L. DUNAGAN and The Industrial Claim Appeals Office of
the State of Colorado, Respondents. No. 96CA0973. Colorado Court of Appeals,
Div. II. May 1, 1997.

Page 497

Senter, Goldfarb & Rice, L.L.C., Karen G. Treece, Denver, for Petitioners.

Crane and Tejada, Bethiah B. Crane, Douglas R. Ware, Durango, for Respondent Randy L. Dungan.

No Appearance for Respondent Industrial Claim Appeals Office.

Opinion by Judge TAUBMAN.

Petitioners, the City of Durango and the Colorado Intergovernmental Risk Sharing Agency, seek review of a final order of the Industrial Claim Appeals Office (Panel), which determined that Randy L. Dunagan (claimant) was entitled to medical benefits for a 1991 back injury. We affirm.

Page 498

I. Causal Relationship

Petitioners first contend that there is no evidence in the record to support a causal relationship between the 1991 back injury suffered by claimant and his disc herniation that was diagnosed in 1995. We disagree.

Claimant's treating physician opined that the 1991 injury weakened the annulus and put claimant at risk of herniation. She also stated that the 1991 injury, combined with claimant's ongoing physical activities on behalf of his employer, were responsible for the deterioration of claimant's back condition. In addition, claimant testified that although he had engaged in physical activities outside of work, he did not suffer any other accidents or incidents that resulted in specific pain or injury to his lower back. The ALJ found claimant's testimony to be credible.

Accordingly, substantial evidence supports the ALJ's conclusion that the disc herniation was work-related. Therefore, neither the Panel nor this court may substitute its judgment for that of the ALJ concerning the weight of the evidence or the inferences to be drawn therefrom. See May D & F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App.1988).

II. Statute of Limitations

Petitioners also assert that claimant failed timely to file a claim for compensation from the 1991 injury on April 20, 1995. We disagree.

Section 8-43-103(2), C.R.S. (1996 Cum.Supp.) requires that a notice claiming compensation be filed within two years after the injury. However, the limitation period commences when 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); Intermountain Rubber Industries, Inc. v. Valdez, 688 P.2d 1133 (Colo.App.1984).

A.

We reject petitioners' argument that, as a matter of law, claimant must have recognized the nature, seriousness, and probable compensable character of his injury once he had missed three non-consecutive days or shifts of employment by "sometime in 1992," and thus the statute of limitations expired sometime in 1994.

In support of their argument, petitioners cite § 8-42-103(1)(a), C.R.S. (1996 Cum.Supp.), which provides, in pertinent part, that a disability indemnity shall not be payable as wages pursuant to the Workers' Compensation Act "[i]f the period of disability does not last longer than three days from the day the employee leaves work as a result of the injury." They also rely on § 8-42-105(1), C.R.S. (1996 Cum. Supp.), which provides that: "In case of temporary total disability of more than three regular working days' duration, the employee shall receive sixty-six and two-thirds percent of said employee's average weekly wages so long as the disability is total...."

However, even if we assume, without deciding, that the three days or three shifts referred to in these sections need not be consecutive, nevertheless, in our view, these sections indicate only the extent of the compensation that is available once a...