Under the “discovery rule” a claim for death benefits is barred if not made within two years of the date of death

ICAO held that the statute of limitations on a claim begins running when the claimant passes away while workers’ compensation benefits are being litigated.

Here, decedent sustained an admitted injury to her back in 2011. During litigation of the back injury, the decedent died in November 2013. The claim remained dormant until March 2015, when a doctor reviewed decedent’s medical records and determined that her death was related to the industrial injury. Thereafter, the dependents filed a claim for death benefits three different times with three different state entities: The Office of Administrative Courts (OAC) in Colorado Springs on July 2, 2015; the OAC in Denver on November 5, 2015; and the Division of Workers’ Compensation on December 7, 2015.

The ALJ held that the two-year statute of limitations under C.R.S. § 8-43-103(2) began running when the decedent passed in 2013, thereby extinguishing the claim.

On appeal, the dependent argued that the claim was timely filed because the statute of limitations only began to run in 2015, when the doctor decided that the death was work-related. However, ICAO determined that the statute of limitations for filing a claim do not commence until a reasonable person would recognize the “probable compensable character of the injury.” ICAO affirmed the ALJ’s holding that a reasonable person would have recognized the compensable nature of a recent claimant’s death in November 2013, and therefore, the statute of limitations began running then.

Claimant also argued that there was a “reasonable excuse” for the late filing and therefore the statute of limitations should be tolled. However, ICAO dismissed this argument  finding that time limit had expired before the claimant’s attorney ever filed the claim with any of the three offices. Becirovic v. Residence Inn and Zurich, W.C. No. 5-002-866-01 (ICAO Aug. 3 2017).

Would you like to know more? Contact Eric J. Pollart at epollart@pollartmiller.com or 303.414.0782.


From the August 2017 Pollart Miller Newsletter