Employer’s First Report of Injury and Statute of Limitations

A claim for workers’ compensation must generally be filed within two years of the alleged injury. The limitation period commences when the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of the injury. This two-year statute of limitations deadline may be extended for one additional year if the claimant establishes a reasonable excuse exists for failing to timely file.

In McGlothlen, claimant worked for the employer as a technical designer. In 2012 and 2013, she sought medical attention for asthma which she believed was triggered by her exposure to an unknown substance in the new building the employer had moved into. Claimant’s supervisor filed a First Report of Injury (FROI) on December 4, 2013. On December 24, 2013, respondents filed a Notice of Contest and in January 2014, due to her continuing respiratory issues, claimant requested a leave of absence from work. In June 2014, claimant reiterated to her employer her belief the employer’s building was causing her health problems, and did not return to work. Claimant subsequently filed a lawsuit in Federal Court alleging the employer had retaliated against her based on her workers’ compensation claim. The court granted a Motion to Dismiss filed by the employer which established that the Workers’ Compensation Act was the exclusive remedy under the circumstances and thus, tort claims seeking monetary recovery for such injuries were barred.

Thereafter, on September 6, 2017, claimant filed an application for hearing alleging compensability. Respondents moved for summary judgment on the grounds the statute of limitations had expired. Respondents argued claimant had “admitted to knowledge of her condition and claimed that the condition was work related as far back as 2012” and failed to file a claim for workers’ compensation benefits within the applicable two-year statute of limitations. The ALJ agreed and granted Respondents’ Motion for Summary Judgment after finding “no reasonable excuse” for claimant to fail to timely file a claim. The Industrial Claims Appeals Office (Panel) affirmed the Administrative Law Judge’s (ALJ) ruling and the claimant then appealed to the Court of Appeals.

The Court of Appeals remanded the claim for further proceedings after concluding it was unclear whether the Panel and ALJ took into consideration arguments made by claimant which the Court felt could support a finding that claimant’s failure to file her own claim after December 2013 did not necessarily mean her claim was barred by the statute of limitations. The claimant argued the FROI acted as the required “notice claiming compensation” triggering the statute of limitations. While the Court noted the FROI serves a different purpose than a workers’ claim for compensation filed by an injured worker, it could not overlook that respondents were now relying on the distinction between the FROI and a workers’ claim for compensation when it took the opposite position in the Federal Court case. There, respondents argued claimant’s tort claims were barred by the respondents filing of the FROI in December 2013. Similar evidence was discussed by the Court indicating respondents’ prior acquiescence that a workers’ claim for compensation was underway at this time. The Court reasoned that because neither the ALJ or Panel referred to the inconsistent positions taken by respondents and whether such positions could support a finding respondents waived or were estopped to assert the FROI was not in fact a workers’ claim for compensation, further proceedings were necessary to clarify the ALJ’s opinion there was “no reasonable excuse” for claimant’s failure to timely file her claim.

McGlothlen v. Industrial Claim Appeals Office, Karman, Inc. and Pinnacol Assurance, W.C. No. 4-937-396 COA No. 18CA0763 (Colo. Ct. App. April 25, 2019)

Would you like to know more? Contact Jake Johnson at jjohnson@pollartmiller.com or 877-259-5693.


From the May 2019 Newsletter