8-43-103. Notice of injury - time limit.
Statute text
(1) Notice of an injury, for which compensation and benefits are payable, shall be given by the employer to the division and insurance carrier, unless the employer is self-insured, within ten days after the injury, and, in case of the death of any employee resulting from any such injury or any accident in which three or more employees are injured, the employer shall give immediate notice thereof to the director. If no such notice is given by the employer, as required by articles 40 to 47 of this title, such notice may be given by any person. Any notice required to be filed by an injured employee or, if deceased, by said employee's dependents may be made and filed by anyone on behalf of such claimant and shall be considered as done by such claimant if not specifically disclaimed or objected to by such claimant in writing filed with the division within a reasonable time. Such notice shall be in writing and upon forms prescribed by the division for that purpose and served upon the division by delivering to, or by mailing by registered mail two copies thereof addressed to, the division at its office in Denver, Colorado. Upon receipt of such notice from a claimant, the division shall immediately mail one copy thereof to said employer or said employer's agent or insurance carrier.
(2) The director and administrative law judges employed by the office of administrative courts shall have jurisdiction at all times to hear and determine and make findings and awards on all cases of injury for which compensation or benefits are provided by articles 40 to 47 of this title. 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. This limitation shall not apply to any claimant to whom compensation has been paid or if it is established to the satisfaction of the director within three years after the injury or death that a reasonable excuse exists for the failure to file such notice claiming compensation and if the employer's rights have not been prejudiced thereby, and the furnishing of medical, surgical, or hospital treatment by the employer shall not be considered payment of compensation or benefits within the meaning of this section; but, 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.
(3) 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.
History
Source: L. 90: Entire article R&RE, p. 500, 1, effective July 1. L. 92: (1) amended, p. 1825, 3, effective April 29. L. 94: (2) amended, p. 1873, 1, effective June 1. L. 2005: (2) amended, p. 854, 10, effective June 1.
Annotations
Editor's note: This section is similar to former 8-52-105 as it existed prior to 1990.
Annotations
ANNOTATION
Annotations
Analysis
I. General Consideration.
II. Notice of Injury by Employer.
III. Jurisdiction.
IV. Limitation on Filing Claims.
A. In General.
B. Commencement and Tolling of Statute of Limitations.
C. Estoppel.
V. Effect of Payment of Compensation.
VI. Excuse of Failure to File.
A. In General.
B. Reasonable Excuse.
C. Lack of Prejudice to Employer.
Law reviews. For article, "The Occupational Disease Disability Act From the Standpoint of the Claimant", see 28 Dicta 41 (1951). For article, "One Year Review of Torts", see 35 Dicta 53 (1958).
Annotator's note. (1) Since 8-43-103 is similar to 8-52-105 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.
(2) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1986 amendment which vested the director of the division of labor with the jurisdiction previously exercised by the industrial commission to hear and determine and make findings and awards on all cases of injury for which compensation or benefits are provided or were decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission.
The proceedings hereunder are purely statutory and not equivalent to a suit in equity. The question of permitting the defense of laches or something analogous thereto in a purely statutory proceeding is one of legislative policy which probably can be answered only by express act of the general assembly. The courts are not allowed to indulge in judicial legislation. Indus. Comm'n v. Carpenter, 102 Colo. 22, 24, 76 P.2d 418 (1938).
Compliance with this section is not an admission of liability. The filing of the first report of injury as required in this section is not an admission of liability by an employer. Stadler v. Indus. Claim Appeals Office, 811 P.2d 447 (Colo. App. 1991).
Applied in First Nat'l Bank v. Long, 44 Colo. App. 317, 616 P.2d 180 (1980).
II. NOTICE OF INJURY BY EMPLOYER.
Employer only required to report accident resulting in injury. Under this section an employer is not required to report all accidents or incidents in connection with his employees, but only those resulting in injury to an employee, the plain legislative intent being that only injuries be reported within the 10-day period prescribed. Monks Excavating & Redi-Mix Cement v. Kopsa, 148 Colo. 586, 367 P.2d 321 (1961).
Injury means compensable injury. Since no benefits flow to a workman merely because he has been the victim of an accident and since injuries must be of sufficient magnitude to prevent him from working for more than seven days before they are compensable, it follows that the term "injury", as it is employed in this section, means compensable injury. The statute so states, in slightly different verbiage. It requires notice to be given of an injury, for which compensation and benefits are payable. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).
For occupational disease, compensable "injury" occurs when the claimant becomes disabled. Before then, although the claimant may suspect that his or her health problems are work-related, no compensable injury has yet occurred. City of Colo. Springs v. Indus. Claim Appeals Office, 89 P.3d 504 (Colo. App. 2004).
However, where an employer has no notice of an injury communicated to him by the employee, and where no such injury is apparent, the employer is not required to do anything under this section. Monks Excavating & Redi-Mix Cement v. Kopsa, 148 Colo. 586, 367 P.2d 321 (1961).
And when a claimant states to his employer that he is all right and thus continues for many months thereafter with the work and makes no claim of compensation, the employer is not required to give notice of the injury or to file notice of contest for no such claim of compensation had been made. Monks Excavating & Redi-Mix Cement v. Kopsa, 148 Colo. 586, 367 P.2d 321 (1961).
This section would be an absurdity if interpreted to require the employer to report something about which he has no knowledge, namely an injury to an employee. By the same token, to interpret the statute so as to require the employer to report all accidents would be a burden not to be found in the statute. Because of the burden involved in reporting all of these small incidents, it was plain that the general assembly intended that only injuries be reported within the 10-day period prescribed. Monks Excavating & Redi-Mix Cement v. Kopsa, 148 Colo. 586, 367 P.2d 321 (1961); City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).
Subsection (1) provides that anyone can make a claim for a claimant. Colo. Auto Body, Inc. v. Newton, 160 Colo. 113, 414 P.2d 480 (1966).
Litigation of issues with knowledge of oral claim waives requirement of written claim. While it may be true that an objection to the lack of a written claim at the time of a hearing, upon notice, might result in supplying the omission within the two-year period (now five-year period), the voluntary litigation of other issues, with full knowledge of the oral claim could be construed by the director as a voluntary waiver of the technical requirement of a written claim. Colo. Auto Body, Inc. v. Newton, 160 Colo. 113, 414 P.2d 480 (1966).
But no waiver where no notice of injury. There is a clear distinction delineated by the authorities between no notice of a claimed injury and mere irregularity in the form thereof. When no notice of a claimed injury occurs, it is jurisdictional, and there can be no waiver. When a deficiency is only as to form of notice of a claimed injury there can be a waiver, and the conduct of the parties after the notice can form the basis of such a waiver. Colo. Auto Body, Inc. v. Newton, 160 Colo. 113, 414 P.2d 480 (1966).
The fact-finding function in support of any award of compensation is for the fact-finder and not the reviewing court. Bohmann v. Indus. Comm'n, 76 Colo. 588, 233 P. 621 (1925); Pac. Emp'rs Ins. Co. v. Indus. Comm'n, 127 Colo. 400, 257 P.2d 404 (1953); State Comp. Ins. Fund v. Foulds, 167 Colo. 123, 445 P.2d 716 (1968); Indus. Comm'n v. Nye, 171 Colo. 433, 468 P.2d 28 (1970).
Thus, reviewing court will remand as to issues industrial commission has not heard or determined. Where on review of a judgment in a workmen's compensation case it appears that the commission has not theretofore had an ample opportunity to hear and determine any issues raised in the proceeding, or has for any reason not in fact heard and determined the issues raised, this court should remand the case to the lower court with directions to set aside its judgment and transmit to the commission a statement of the issues not fully presented, staying its proceedings until the commission should hear and determine such issues and return its findings to the court. Black Diamond Fuel Co. v. Frank, 99 Colo. 528, 64 P.2d 797 (1936).
But industrial commission abuses discretion when evidence insufficient to sustain this ruling. When the evidence is insufficient as a matter of law to sustain the commission's suspension of the six month (now three year) limitation of this section, in finding otherwise the commission abused its discretion. Armour & Co. v. Indus. Comm'n, 149 Colo. 251, 368 P.2d 798 (1962).
And court must set forth facts to determine whether evidence is competent. In order to determine whether there is competent evidence in the record to support the claim or whether there are reasonable inferences to be drawn therefrom to support the findings, it is necessary for the supreme court to set forth the factual situation as presented by the record. Pac. Emp'rs Ins. Co. v. Indus. Comm'n, 127 Colo. 400, 257 P.2d 404 (1953).
Court may draw its own conclusions when evidence not conflicting. When the evidence in workmen's compensation cases, as disclosed by the record in the proceeding, is undisputed and without substantial conflict, the court may properly draw its own conclusions therefrom and enter a judgment accordingly, notwithstanding the findings and award of the industrial commission may be to the contrary. Indus. Comm'n v. Pappas, 89 Colo. 329, 1 P.2d 919 (1931); Pac. Emp'rs Ins. Co. v. Indus. Comm'n, 127 Colo. 400, 257 P.2d 404 (1953).
IV. LIMITATION ON FILING CLAIMS.
A. In General.
Claim does not exist until filed and established. Until a claim is filed and established under the procedure set out in this section, neither claim nor dependents exist. Frontier Airlines v. Indus. Comm'n, 654 P.2d 1333 (Colo. App. 1982).
Time limitation for filing claims is governed by statute in effect at time of onset of disability or death because the extent of employer's liability cannot be determined until disability or death has occurred. Hadley v. Indus. Comm'n, 677 P.2d 443 (Colo. App. 1984).
The time for the filing of a claim under subsection (2) is one year (now three years) from the date of the accident. Colo. Auto Body, Inc. v. Newton, 160 Colo. 113, 414 P.2d 480 (1966).
Three-year period not jurisdictional. The terms of this section imply a statute of limitations, for they are more like the terms employed in such statutes than like terms of jurisdictional import. The three-year period is not jurisdictional. Kersting v. Indus. Comm'n, 39 Colo. App. 297, 567 P.2d 394 (1977).
General limitation statutes do not govern a proceeding under the workmen's compensation act. Miller v. Indus. Comm'n, 106 Colo. 364, 105 P.2d 404 (1940).
For failure of employee to file notice of claim within one year (now three years) bars recovery. An employee who fails to file notice of his claim for compensation within the time period required by this section is barred from recovery. This is conclusive against employee. Indus. Comm'n v. W.A. Hover & Co., 82 Colo. 335, 259 P. 509 (1927); London Guarantee & Accident Co. v. Indus. Comm'n, 83 Colo. 252, 263 P. 405 (1928); Monks Excavating & Redi-Mix Cement v. Kopsa, 148 Colo. 586, 367 P.2d 321 (1961).
And fact that employer does not report accident as required does not waive necessity of employee's giving such notice. Indus. Comm'n v. W.A. Hover & Co., 82 Colo. 335, 259 P. 509 (1927); Monks Excavating & Redi-Mix Cement v. Kopsa, 148 Colo. 586, 367 P.2d 321 (1961).
Neither a report of injury nor a notice of contest satisfies the statute of limitations. Nothing in this section suggests that an employer's filing of either form absolves a claimant's burden to file a "notice claiming compensation". And the mere assignment of a claim number by the division does not mean the notice was given. Packard v. Indus. Claim Appeals Office, 2019 COA 146, 456 P.3d 473.
Although the notice may be waived. C.W. Kettering Mercantile Co. v. Fox, 77 Colo. 90, 234 P.464 (1925).
As where employer files petition for rehearing. Objection that no notice of claim was filed is waived by the employer who files a petition for rehearing, participates in the rehearing, and introduces testimony on the merits. Indus. Comm'n v. Employers' Liab. Assurance Corp., 78 Colo. 267, 241 P. 729 (1925); Ontario Mining Co. v. Indus. Comm'n, 86 Colo. 206, 280 P. 483 (1929).
Also, an employer waives the limitation for filing claims when the objection is not made until it filed its petition for review after the case had once been decided in its favor, a further hearing ordered, additional evidence taken, and an award made in favor of claimant. Indus. Comm'n v. Co-Operative Oil Co., 93 Colo. 192, 24 P.2d 753 (1933).
If employer in good faith fails to notify, he does not waive right to assert this section. If an employer does not give notice of an accident in the honest belief that the employee was an independent contractor, and so advised employee's agent at the first opportunity, he does not waive his right to assert the running of this section as a defense. Weidensaul v. Indus. Comm'n, 107 Colo. 28, 108 P.2d 234 (1940).
B. Commencement and Tolling of Statute of Limitations.
The time begins to run for filing "a notice claiming compensation" when the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury. City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967); Indus. Comm'n v. Workman, 165 Colo. 61, 437 P.2d 795 (1968); Peterson v. Wandell-Lowe Transp. & Storage, 168 Colo. 250, 450 P.2d 660 (1969); Indus. Comm'n v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970); City & County of Denver v. Moore, 31 Colo. App. 310, 504 P.2d 367 (1972); Intermountain Rubber Indus. v. Valdez, 688 P.2d 1133 (Colo. App. 1984); City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997).
And the critical date involved in this statute of limitations is not the date of the accident, but the date of the injury. Indus. Comm'n v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970); City & County of Denver v. Moore, 31 Colo. App. 310, 504 P.2d 367 (1972).
For occupational disease, "injury" occurs when the claimant becomes disabled, and not before. City of Colo. Springs v. Indus. Claim Appeals Office, 89 P.3d 504 (Colo. App. 2004).
Rather, claimant need only file claim after discovery of injury. Although claimant had been experiencing monthly acoustic trauma since 1947, where a marked loss of hearing was not revealed by a doctor's examination until March, 1969, and a claim was filed in December, 1969, the claimant met the time requirements, as he was not required to make a report or file a claim until after the discovery of the injury. City & County of Denver v. Moore, 31 Colo. App. 310, 504 P.2d 367 (1972).
Sections 8-43-101 (1) and 8-43-203 (1) do not mandate a conclusion that an employee meeting this three-day or three-shift requirement has, as a matter of law, become aware of the nature or seriousness of his or her injury. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997).
Statute of limitations on worker's claim for compensation never began to run since employer failed to file an injury report even though worker testified he reported injury to employer two days after accident which constituted sufficient notice. Halliburton Servs. v. Miller, 720 P.2d 571 (Colo. 1986).
Employer's failure to correct an erroneous report tolls the limitation period set forth in this section. Where initial report indicated that claimant was able to continue working after the injury, but instead he missed 23 consecutive shifts encompassing 71 calendar days and this lost time was never reported, his claim was not time-barred. City of Englewood v. Indus. Claim Appeals Office, 954 P.2d 640 (Colo. App. 1998).
Employer's failure to file injury report tolls limitation periods in both subsection (2) and subsection (3). Miller v. Indus. Claim Appeals Office, 985 P.2d 94 (Colo. App. 1999).
Determination of issue of time of injury requires fact-finding by director. Although the claimant, sought medical treatment for his injuries the day following the accident, the fact that his injury was not immediately disabling, and he was able to continue with his employment raises an issue of when the injury occurred and the six-month (now three-year) period commenced. Upon remand, that issue must be determined and a finding of fact made thereon by the director. Indus. Comm'n v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970).
Finding as to when claimant should have recognized compensable injury required. Where industrial commission dismissed a compensation claim for failure of claimant to file within the statutory time period provided in this section, the commission was required to make a finding as to when the claimant reasonably should have recognized the compensable character of his injury. Richmond v. Indus. Comm'n, 33 Colo. App. 21, 513 P.2d 1088 (1973).
Employer relieved of financial burden when injured claimant files. If claimant has a compensable injury and files his claim therefor within the time provided by statute, the employer is relieved of all financial burdens respecting his injured employee. It becomes the primary obligation of the insurance carrier to pay any compensation which the director should determine to be due. Pac. Emp'rs Ins. Co. v. Indus. Comm'n, 127 Colo. 400, 257 P.2d 404 (1953).
War is sufficient to toll the running of this section. Colo. Fuel & Iron Co. v. Indus. Comm'n, 73 Colo. 579, 216 P. 706 (1923); Indus. Comm'n v. Peppas, 71 Colo. 25, 203 P. 664 (1922).
The requirement that "the employer's rights have not been prejudiced" in subsection (2) applies only to the third or grace-period year. It does not toll the statute of limitations generally. Packard v. Indus. Claim Appeals Office, 2019 COA 146, 456 P.3d 473.
Mistaken allegation of ownership of property where injury occurred will not bar recovery. Joe Dandy Mining Co. v. Indus. Comm'n, 112 Colo. 241, 148 P.2d 817 (1944).
And an employee's claim for compensation for a back injury is not barred by the six-month (now three-year) limitation in this section, where his claim for another injury, received in the same accident, has been allowed by the director and later suspended, and his claim for the back injury was made when the cause was reopened on the director's own motion for the purpose of determining whether or not there had been error, mistake, or change in condition. Safeway Stores v. Newman, 123 Colo. 362, 230 P.2d 168 (1951).
But claimant's minority and ignorance of death will not toll the statutory limitation. Miller v. Indus. Comm'n, 106 Colo. 364, 105 P.2d 404 (1940).
Nor will physical and mental incapacity. Weidensaul v. Indus. Comm'n, 107 Colo. 28, 108 P.2d 234 (1940).
Corporate officer is not precluded from receiving protection of tolling of statute of limitations by virtue of his status alone. The mere fact that such officer had the authority to file a first report of injury on behalf of the corporate employer does not restrict such officer's right to file a claim. There must be a showing of fraud or improper corporate manipulation in order to overcome the statutory protection. White House Indus., Inc. v. May, 845 P.2d 544 (Colo. App. 1992) (decided under previous 8-52-105).
The doctrine of equitable estoppel may in a proper case be invoked to prevent a party from relying upon a statute of limitations. Kettering Mercantile Co. v. Fox, 77 Colo. 90, 234 P. 464 (1925); Greeley Gas & Oil Co. v. Thomas, 87 Colo. 486, 288 P. 1051 (1930).
Estoppel not shown. Where injured employee's personal friend and physician told him that he would take care of everything and file all necessary papers and reports, but failed to tell employee that employer would resist his claim, and there was no evidence that the doctor was the employer's agent for any purpose, there was no basis for estoppel against the employer to preclude him from relying on the running of this section. Weidensaul v. Indus. Comm'n, 107 Colo. 28, 108 P.2d 234 (1940).
Waiver. Where the state compensation insurance fund awaits the outcome of a hearing on the merits before invoking the three-year statute of limitations, it waives its right to the protection of that provision. Kersting v. Indus. Comm'n, 39 Colo. App. 297, 567 P.2d 394 (1977).
Defense of untimely filing not estopped by employer's payments. The previous payment by an employer and his insurer of most of an employee's medical expenses and an offer to pay for surgery do not estop them from asserting as a defense the employee's untimely filing of his claim. Martin v. Indus. Comm'n, 43 Colo. App. 521, 608 P.2d 366 (1979).
V. EFFECT OF PAYMENT OF COMPENSATION.
The bar of this section "does not apply to any claimant to whom compensation has been paid". Indus. Comm'n v. Globe Indem. Co., 74 Colo. 52, 218 P. 910 (1923); C. W. Kettering Mercantile Co. v. Fox, 77 Colo. 90, 234 P. 464 (1925); Ontario Mining Co. v. Indus. Comm'n, 86 Colo. 206, 280 P. 483 (1929); Frank v. Indus. Comm'n, 96 Colo. 364, 43 P.2d 158 (1935); City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).
But payment of wages to employee injured in employment accident does not of itself establish payment of compensation. Pac. Emp'rs Ins. Co. v. Indus. Comm'n, 127 Colo. 440, 257 P.2d 404 (1953), rev'g Comerford v. Carr, 86 Colo. 590, 284 P. 121 (1930); Morrow v. Indus. Comm'n, 98 Colo. 348, 56 P.2d 35 (1936); Sommers v. Borgmann, 111 Colo. 552, 144 P.2d 554 (1943); Stauss v. Indus. Comm'n, 144 Colo. 288, 355 P.2d 1076 (1960).
And in order that the payment of wages during the absence of an employee may be held to be the payment of compensation under the workmen's compensation act, it must be established by competent evidence or reasonable inferences to be drawn therefrom that in making these payments the employer was doing so conscious of the fact that he was making the same as compensation, and it must be received by the employee with the knowledge or reasonable grounds for assuming that the payments made to him were being made as compensation for his injuries. Pac. Emp'rs Ins. Co. v. Indus. Comm'n, 127 Colo. 400, 257 P.2d 404 (1953); Stauss v. Indus. Comm'n, 144 Colo. 288, 355 P.2d 1076 (1960).
Furthermore, payment of salary during bona fide illness does not constitute payment of compensation tolling the statutory limitation. Rahder v. Indus. Comm'n, 105 Colo. 594, 100 P.2d 1043 (1940).
Also, donation is not compensation. A donation of a burial lot to widow of deceased in consideration of long and faithful services of the latter to the donor, was held not to be a compensation payment within the meaning of this section so as to toll the running of the statute. Moreno v. State Indus. Comm'n, 104 Colo. 610, 92 P.2d 739 (1939).
Compensation paid to a claimant under the workmen's compensation laws of a sister state does not constitute "compensation paid" as contemplated by this section so as to permit filing of a claim for compensation in this state after expiration of the statutory period for such filing. Indus. Comm'n v. Pearcy, 149 Colo. 457, 369 P.2d 560 (1962).
Rather, such payments satisfy all claims for disability. Where employee employed in another state is injured in this state and claims and is paid compensation under that state's law, and lump sum is paid in full and final settlement of all claims for disability resulting from accident, such payment is made and received as satisfaction of all claims for disability and not as compensation as contemplated by this section. Indus. Comm'n v. Pearcy, 149 Colo. 457, 369 P.2d 560 (1962).
Prior to 1941, employer's furnishing medical treatment was considered "compensation" tolling statutory limitation. Indus. Comm'n v. Globe Indem. Co., 74 Colo. 52, 218 P. 910 (1923); Royal Indem. Co. v. Indus. Comm'n, 88 Colo. 113, 293 P. 342 (1930); Indus. Comm'n v. Lockard, 89 Colo. 428, 3 P.2d 416 (1913); Frank v. Indus. Comm'n, 96 Colo. 364, 43 P.2d 158 (1935); Miller v. Indus. Comm'n, 106 Colo. 364, 105 P.2d 404 (1940); State Hwy. Dept. v. Stunkard, 115 Colo. 358, 174 P.2d 346 (1946); Gregorich v. Indus. Comm'n, 117 Colo. 423, 188 P.2d 886 (1948); Gregorich v. Indus. Comm'n, 121 Colo. 477, 217 P.2d 614 (1950).
But mere medical examination and payment of burial expenses was not such "compensation" prior to the 1941 amendment. Evanoff v. Indus. Comm'n 96 Colo. 550, 45 P.2d 688 (1935); Garden Farm Dairy v. Dorchak, 102 Colo. 36, 76 P.2d 743 (1938); Moreno v. State Indus. Comm'n, 104 Colo. 610, 92 P.2d 739 (1939); Rahder v. Indus. Comm'n, 105 Colo. 594, 100 P.2d 1043 (1940).
Time limitation not tolled by payment of medical expenses. Payment of medical expenses, such as those paid for by the insurer on behalf of an employer, are not to be considered compensation so as to toll or modify the time limitation for filing a claim. Martin v. Indus. Comm'n, 43 Colo. App. 521, 608 P.2d 366 (1979).
VI. EXCUSE OF FAILURE TO FILE.
Failure of claimant to file within six months (now three years) requires showing of reasonable excuse and no prejudice to employer. Under this section a claim for compensation must be filed within the statutory time period after injury unless it is established by evidence produced by the claimant to the satisfaction of the industrial commission that a reasonable excuse exists for failure to file such claim and that the employer's rights have not been prejudiced thereby. Monks Excavating & Redi-Mix Cement v. Kopsa, 148 Colo. 586, 367 P.2d 321 (1961); Armour & Co. v. Indus. Comm'n, 149 Colo. 251, 368 P.2d 798 (1962); Univ. of Denver-Colorado Sem. & Univ. Park Campus v. Johnston, 151 Colo. 465, 378 P.2d 830 (1963); Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Bynon v. W.T. Rawleigh Co., 164 Colo. 182, 433 P.2d 333 (1967).
The industrial commission is entrusted with the discretionary power to determine the reasonableness of the excuse and the prejudice resulting from the delay. Indus. Comm'n v. Newton Lumber & Mfg. Co., 135 Colo. 594, 314 P.2d 297 (1957); Armour & Co. v. Indus. Comm'n, 149 Colo. 251, 368 P.2d 798 (1962); State Comp. Ins. Fund v. Stampfel, 153 Colo. 448, 386 P.2d 582 (1963); State Comp. Ins. Fund v. Foulds, 167 Colo. 123, 445 P.2d 716 (1968); Indus. Comm'n v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970).
And the commission's decision as to excuse and prejudice will only be set aside upon a showing of fraud or abuse of discretion. Indus. Comm'n v. Newton Lumber & Mfg. Co., 135 Colo. 594, 314 P.2d 297 (1957); State Comp. Ins. Fund v. Stampfel, 153 Colo. 448, 386 P.2d 582 (1963); State Comp. Ins. Fund v. Foulds, 167 Colo. 123, 445 P.2d 716 (1968); Indus. Comm'n v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970).
Not all reasons for delayed applications constitute legally justifiable excuses within the purview of the statute. Armour & Co. v. Indus. Comm'n, 149 Colo. 251, 368 P.2d 798 (1962); Silsby v. Tops Drive In Restaurant-Dutton Enters., Inc., 160 Colo. 549, 418 P.2d 525 (1966); Indus. Comm'n v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970).
For a "legally justifiable" excuse is one which the industrial commission, under all attendant circumstances, finds to be reasonably sufficient to excuse the delay. Silsby v. Tops Drive In Restaurant-Dutton Enters., Inc., 160 Colo. 549, 418 P.2d 525 (1966).
Thus, while a claimant may demonstrate his reason for the delayed filing of his claim, the reason may not compel the commission, as a matter of law, to accept it as a legally justifiable excuse. Indus. Comm'n v. Canfield, 172 Colo. 18, 469 P.2d 737 (1970).
However, this section makes no requirement that the reasonable excuse be one that is legally watertight. City & County of Denver v. Phillips, 166 Colo. 312, 443 P.2d 379 (1968).
As when there is evidence to support the referee's conclusion that the employee presented a reasonable excuse for his late filing, the referee errs in going further and holding that the excuse though reasonable is not legally sufficient. City & County of Denver v. Phillips, 166 Colo. 312, 443 P.2d 379 (1968).
Reasonable excuse where claimant does his best under circumstances. An incorrect address was given by the employer for claimant, hence the notice to claimant, enclosing claim forms did not reach him. The claimant was not made aware of the necessity of filing a claim for compensation until after he had retained counsel who secured the proper forms and promptly prepared and filed the claim for compensation. This claim was actually filed within six months from the date the employer filed its denial of liability. As we read this record it is apparent that this claimant was doing the best he could under the circumstances. Indus. Comm'n v. Newton Lumber & Mfg. Co., 135 Colo. 594, 314 P.2d 297 (1957).
But the fact that claimant did not desire to take the time to have x-rays taken which would have indicated the nature of her ailment, if considered the "reason" for her late filing, was legally insufficient. Armour & Co. v. Indus. Comm'n, 149 Colo. 251, 368 P.2d 798 (1962).
C. Lack of Prejudice to Employer.
Finding of excuse will not stand without finding of nonprejudice. A finding of nonexcuse ends the matter, but a finding that the claimant is excused from the delinquency will not stand alone unless there is also a finding of nonprejudice to the employer. Univ. of Denver-Colorado Sem. & Univ. Park Campus v. Johnston, 151 Colo. 465, 378 P.2d 830 (1963).
And prejudice to the employer must be actual and must be shown to be so. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 129 Colo. 287, 269 P.2d 696 (1954); Armour & Co. v. Indus. Comm'n, 149 Colo. 251, 368 P.2d 798 (1962).
But the burden of proof of lack of prejudice to the employer is not on claimant. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 129 Colo. 287, 269 P.2d 696 (1954); Indus. Comm'n v. Newton Lumber & Mfg., 135 Colo. 594, 314 P.2d 297 (1957).
Finding of reasonable excuse will stand where prejudice is not contended. Where it is not contended that the late filing of a claim resulted in any prejudice to the rights of the employer, and where the industrial commission has wide discretion in determining whether reasonable excuse exists for failure to file the claim within a year, and the court cannot say as matter of law that the commission has abused its discretion in permitting late filing of the claim, the finding that reasonable excuse existed will be sustained. State Comp. Ins. Fund v. Stampfel, 153 Colo. 448, 386 P.2d 582 (1963).
And the employer's rights are not prejudiced by the late filing of the claim where the employer knows of the accident, when it occurred, who the medical attendants of claimant were, where he was hospitalized, when admitted and when discharged from the hospital, as disclosed by the employer's report. Indus. Comm'n v. Newton Lumber & Mfg. Co., 135 Colo. 594, 314 P.2d 297 (1957).
However, the receipt of initial medical reports does not support a ruling of nonprejudice where the employer admits it had notice of the accident, and that there was some treatment afforded and paid for, for notice of the accident is not equivalent to notice of claim for compensable injury. The initial reports, far from being notice to the employer, indicated that there was no claim for compensation. City & County of Denver v. Bush, 166 Colo. 76, 441 P.2d 666 (1968).
Employer prejudiced by claimant's failure to file within statutory period because not afforded opportunity to examine and treat injuries. Armour & Co. v. Indus. Comm'n, 149 Colo. 251, 368 P.2d 798 (1962); City & County of Denver v. Bush, 166 Colo. 76, 441 P.2d 666 (1968).