Miller v. Indus. Claim Appeals Office, 98CA1275.
| Citation | 985 P.2d 94 |
| Decision Date | 27 May 1999 |
| Docket Number | No. 98CA1275.,98CA1275. |
| Parties | Edward Eugene MILLER, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, San Juan County Mining, Colorado Compensation Insurance Authority, and Subsequent Injury Fund, Respondents. |
| Court | Court of Appeals of Colorado |
Crane and Tejada, P.C., Bethiah B. Crane, Durango, for Petitioner.
Colorado Compensation Insurance Authority, Michael J. Steiner, Denver, for Respondent San Juan County Mining.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Andrew M. Katarikawe, Assistant Attorney General, Denver, Colorado, for Respondent Subsequent Injury Fund.
No Appearance for Respondent Industrial Claim Appeals Office.
Opinion by Judge PLANK.
In this workers' compensation proceeding, Edward Eugene Miller (claimant) seeks review of the final order issued by the Industrial Claim Appeals Office (Panel) upholding the order of the Administrative Law Judge (ALJ) which determined that the five-year statute of limitations set forth in Colo. Sess. Laws 1990, ch. 62, § 8-43-103(3) at 500, bars his claim. We set aside the order and remand.
After an evidentiary hearing, the ALJ found that claimant, an underground miner, had contracted silicosis in the course of his employment with San Juan County Mining (employer). The ALJ further found that the onset of claimant's disability from the disease occurred on May 20, 1991, the date on which employer reassigned claimant to above-ground work, and that claimant did not file a notice requesting compensation until December 9, 1996. Determining that claimant failed to seek compensation within the prescribed five-year period after the commencement of his disability, the ALJ concluded that his claim was barred.
On review to the Panel, claimant asserted that the five-year limitation on filing a claim was tolled by employer's failure to provide notification of his occupational disease to the Division of Workers' Compensation as required by §§ 8-43-103(1) and 8-43-103(2), C.R.S.1998. The Panel determined that the tolling provision incorporated in § 8-43-103(2) did not apply regardless of any obligation of the employer to notify the Division. Accordingly, it affirmed the ALJ's dismissal of the claim as time-barred.
In this appeal, claimant does not challenge the ALJ's findings as to the date he incurred his disability or the date he filed for benefits. Nor does he challenge the applicable statutes.
Claimant contends that the Panel erred in construing § 8-43-103, C.R.S.1998, by finding that the tolling provision contained in § 8-43-103(2) did not also apply to the five-year limitations period provided for in § 8-43-103(3), C.R.S.1998. We agree.
Initially, we note that the version of the statute in effect during 1991 when claimant's disability commenced applies to the claim asserted here. See SCI Manufacturing v. Industrial Claim Appeals Office, 879 P.2d 470 (Colo.App.1994)
(). Nevertheless, claimant concedes, and we agree, that the current version varies only slightly and the differences do not impact the issues raised. Consequently, for purposes of simplicity, our analysis will proceed under the present version of § 8-43-103.
Section 8-43-103(1) requires an employer to provide notice of an industrial injury within ten days to the Division. Section 8-43-103(2) vests jurisdiction in the Director and ALJs to adjudicate matters in cases involving all compensable injuries. It further provides, in pertinent part:
Except in cases of disability or death resulting from exposure to radioactive materials, substances, or machines or to fissionable materials, or any type of malignancy caused thereby, or from poisoning by uranium or its compounds, or from asbestosis, silicosis, and anthracosis, the right to compensation and benefits provided by said articles shall be barred unless, within two years after the injury or after death resulting therefrom, a notice claiming compensation is filed with the division.... [B]ut in all cases in which the employer has been given notice of an injury and fails, neglects, or refuses to report said injury to the division as required by the provisions of said articles, this statute of limitations shall not begin to run against the claim of the injured employee or said employee's dependents in the event of death until the required report has been filed with the division. (emphasis supplied)
Section 8-43-103(3) provides:
In cases of disability or death resulting from exposure to radioactive materials, substances, or machines or to fissionable materials, or any type of malignancy caused thereby, or from poisoning by uranium or its compounds, or from asbestosis, silicosis, or anthracosis, the right to compensation and benefits shall be barred unless, within five years after the commencement of disability or death, a notice claiming compensation is filed with the division. (emphasis supplied)
A court's primary task in construing a statute is to give effect to the intent of the General Assembly by looking first at the language of the statute. Singleton v. Kenya Corp., 961 P.2d 571 (Colo.App.1998). Words and phrases in a statute should be given their plain and ordinary meanings, and a forced, subtle, or strained construction should be avoided if the language is simple and the meaning clear. Grogan v. Lutheran Medical Center, Inc., 950 P.2d 690 (Colo.App. 1997).
When the plain language of a statute is clear and unambiguous, the statue should be applied as written. Rios v. Mireles, 937 P.2d 840 (Colo.App.1996). A statute is ambiguous, and we may resort to other methods of statutory construction, only if it is fairly susceptible of more than one interpretation. Support, Inc. v. Industrial Claim Appeals Office, 968 P.2d 174 (Colo.App.1998).
We also give due deference to the Panel's interpretation of the statute as the agency charged with its enforcement. Support, Inc. v. Industrial Claim Appeals Office, supra.
Accordingly, we will set aside the Panel's interpretation only if it is inconsistent with the clear language of ...
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