Postlewait v. Midwest Barricade, 94CA2151

• Decision Date: 28 September 1995
• Docket Number: No. 94CA2151,94CA2151
• Citation: 905 P.2d 21
• Parties: Robert POSTLEWAIT, Petitioner, v. MIDWEST BARRICADE; USF&G; and the Industrial Claim Appeals Office of the State of Colorado, Respondents. . IV
• Court: Colorado Court of Appeals

Page 21

905 P.2d 21

Robert POSTLEWAIT, Petitioner, v. MIDWEST BARRICADE; USF&G and the Industrial Claim Appeals

Office of the State of Colorado, Respondents.

No. 94CA2151.

Colorado Court of Appeals,

Div. IV.

Sept. 28, 1995. ^*

Steven U. Mullens, P.C., James A. May, Colorado Springs, for Petitioner.

Ritsema & Lyon, P.C., Karl A. Schulz, Colorado Springs, for Respondents Midwest Barricade and USF&G.

No appearance for Respondent Industrial Claim Appeals Office.

Opinion by Judge KAPELKE.

Robert Postlewait (claimant) seeks review of a final order of the Industrial Claim Appeals Panel (Panel) awarding him temporary total disability benefits for approximately 3 months, and allowing respondents, Midwest Barricade (employer) and its insurer, USF&G, to reduce these benefits by one day's compensation for each of the 15 days claimant failed to report the injury. We affirm.

It is undisputed that claimant sustained a low back injury in the course of his employment on June 29, 1992. Claimant testified before the Administrative Law Judge (ALJ) that he orally reported the injury to his supervisor at the time of the injury; however, the supervisor's testimony contradicted this statement. Claimant also testified that he orally reported the injury to his employer three days after the occurrence of the injury and was told not to file a claim.

Claimant filed his claim for compensation on July 18, 1992, and he first sought treatment for the injury on July 29, 1992, when he visited his primary care physician. In an October 1992 report, this physician opined that claimant had a chronic back problem resulting from a 1987 injury, that the 1992 "reinjury" was not serious, and that he was released from treatment on September 25, 1992, with no permanent impairment.

Pursuant to § 8-42-107(8)(b), C.R.S. (1994 Cum.Supp.), claimant sought an independent medical examination (IME). The Division of Workers' Compensation (division) selected the IME physician, who concurred with the opinion of the primary care physician that claimant reached maximum medical improvement (MMI) on September 25, 1992, with no impairment attributable to the 1992 injury.

Claimant later returned to his primary care physician, who referred him to a neurosurgeon for further consultation. In the neurosurgeon's opinion, the 1992 injury constituted a new injury, for which he recommended surgery. Later, the primary care physician changed his mind and adopted the neurosurgeon's view that the 1992 injury was a new injury.

On this record, the ALJ found that claimant had failed to overcome, by clear and convincing evidence, the IME physician's finding that MMI was reached on September 25, 1992. Therefore, the ALJ awarded temporary total disability benefits for the period between June 30 to September 25, 1992. However, the ALJ found that, because claimant had failed to report the injury to employer in writing, as required by § 8-43-102(1), C.R.S. (1994 Cum.Supp.), until July 18, 1992, respondents were entitled to a penalty equivalent to one day's compensation for each of the fifteen days the injury was not timely reported. The Panel affirmed.

I.

Claimant first contends that the penalty was erroneously imposed because he substantially complied with the reporting requirement. We disagree.

Section 8-43-102(1)(a), C.R.S. (1994 Cum.Supp.) provides, inter alia, that an injured employee shall notify his or her employer in writing of the injury within four days of its occurrence. The failure to report the injury in writing subjects the employee to forfeiture of one day's compensation for each day's failure to so report. Unlike its predecessor statute, which had no requirement that the notice be written, see § 8-45-102, C.R.S. (1986 Repl.Vol. 3B) and Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App.1984) (recognizing that verbal notice is sufficient), the current statute does impose a requirement that the notice of injury be in writing.

Since the imposition of penalties reduces the employer's liability for disability benefits, it is in the nature of an affirmative defense. Accordingly, the employer bears the initial burden of proving that it did not receive written notice of the injury. See Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946); Valley Tree Service v. Jimenez, 787 P.2d 658 (Colo.App.1990) (burden of proof rests on party who asserts the affirmative of an issue).

However, once an employer presents prima facie evidence that the claimant did not timely report the injury, the burden shifts to the claimant to rebut that prima facie showing. See Hansen v. Lederman, 759 P.2d 810 (Colo.App.1988) (burden of proof shifts to plaintiff to prove tolling once defendant makes prima facie showing that claim was brought outside statute of limitations).

Claimant argues, without explanation, that because his employer instructed him not to file a workers' compensation claim, he was somehow prevented from giving employer written notice of the injury. Inasmuch as filing a claim and giving written notice of an injury are two distinct actions under the Workers' Compensation Act, we fail to understand this line of reasoning.

Furthermore, claimant argues that his oral notices of injury constituted substantial compliance with the notice statute. However, we hold that, under § 8-43-102, oral notice to an employer of an industrial injury is insufficient and that strict compliance with the writing requirement is necessary.

Here, claimant failed to rebut employer's showing that he failed to give employer timely written notice of the injury....