Colorado § 8-41-206 - Disability beginning five years after injury.

§ 8-41-206. Disability beginning five years after injury.

Any disability beginning more than five years after the date of injury shall be conclusively presumed not to be due to the injury, 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, or anthracosis.

Source: L. 90: Entire article R&RE, p. 479, § 1, effective July 1.

Editor's note: This section is similar to former § 8-52-106 as it existed prior to 1990.

ANNOTATION

Annotator's note. Since § 8-41-206 is similar to § 8-52-106 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.

Compensation under this section predicated on proved accident, as cause, and proved disability, as result, within five years. London Guarantee & Accident Co. v. Sauer, 92 Colo. 565, 22 P.2d 624 (1933).

But once the causal connection is established, a disability may be shown, whether it is actually disclosed early or late. London Guarantee & Accident Co. v. Sauer, 92 Colo. 565, 22 P.2d 624 (1933).

Thus, this section is not one of limitations. It creates an arbitrary rule of evidence, which inhibits a finding of any causal connection between an injury and an accident when the disability has its beginning five years after date of the accident. Indus. Comm'n v. Weaver, 81 Colo. 191, 254 P. 444 (1927); City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194 (1967).

Which does not bar an action for a recurring disability more than five years after accident. Indus. Comm'n v. Weaver, 81 Colo. 191, 254 P. 444 (1927).

For a recurring disability is a different thing from a "disability beginning more than five years from the date of the accident". Indus. Comm'n v. Weaver, 81 Colo. 191, 254 P. 444 (1927).

Furthermore, the earliest disability for which compensation awarded or paid arrests running of any statute of limitations. London Guarantee & Accident Co. v. Sauer, 92 Colo. 565, 22 P. 2d 624 (1933).

"Disability" as used in this section means disability to work. United States Fid. & Guar. Co. v. Indus. Comm'n, 97 Colo. 102, 46 P.2d 752 (1935).

And "beginning" signifies commencement; the entrance into existence; the initial state of anything. Indus. Comm'n v. Weaver, 81 Colo. 191, 254 P. 444 (1927).

Disability under this statute does not commence only when the injured worker is unable to work. The commencement of disability may also be established by evidence which demonstrates that a claimant is able to return to work only in a restricted capacity. Ricks v. Indus. Claim Appeals Office, 809 P.2d 1118 (Colo. App. 1991).

Employee failing to make claim within prescribed period is guilty of laches. Where an employee, without reasonable excuse, neglects to make claim for alleged disability resulting from accidental injuries within the time fixed by this section, he is guilty of laches, and judgment awarding his compensation will be reversed. United States Fid. & Guar. Co. v. Indus. Comm'n, 97 Colo. 102, 46 P.2d 752 (1935).

When no onset of disability was established, this section does not apply; thus, findings of maximum medical improvement and lack of permanent impairment were premature, and the claimant was not precluded from seeking medical benefits. Leming v. Indus. Claim Appeals Office, 62 P.3d 1015 (Colo. App. 2002).