Statute of Limitations is an affirmative defense and it is Respondents’ duty to prove that the claimant was aware of the seriousness of the injury

In Mestas, Respondents alleged that the claimant’s claim for benefits for hearing loss was barred by the statute of limitations. The claimant had worked as a firefighter for approximately 39 years, retiring on June 1, 2017. The claimant filed a workers’ claim for compensation on July 23, 2019 for bilateral hearing loss due to exposure to extreme noise during his 39-year career.

The ALJ found that an issues letter from audiologist Dr. Price dated February 12, 2019 was the first time that a medical provider directly attributed the claimant’s hearing loss and related symptoms to his work activities. As a result, the ALJ rejected the contrary opinion of Dr. Watson, who performed an independent medical examination. Dr. Watson opined that the claimant should have known prior to 2019 that his hearing loss and related symptoms were due to his work-related exposures.

Based on these finding, the ALJ determined that February 12, 2019 was the first time the claimant realized the serious and compensable nature of his hearing loss. The claimant filed a workers’ claim for compensability on July 23, 2019, less than one year from his realization of the possible compensability. The ALJ, therefore, concluded that the statute of limitations did not bar the claim.

On appeal, the respondents contended that the ALJ applied the incorrect legal standard by failing to determine whether a reasonable person should have recognized the nature, seriousness, and probable compensable nature of the injury. However, since the statute of limitations is an affirmative defense, it was Respondents’ duty to prove that the claimant was aware of the seriousness of the injury more than two years before the date of the claim. The ALJ’s decision was upheld as it was supported by substantial evidence.

Mestas v. City & Cty. of Denver, W.C. No. 5-112-788-001 (I.C.A.O. Jan. 11, 2021)

 

Want to know more? Contact Tara Starzec at tstarzec@pollartmiller.com or 877-259-5693.

March 2021 Newsletter

2021-04-21T07:29:05+00:00