Opinion
W.C. No. 4-326-355.
December 30, 2009.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated July 21, 2009 that determined that the claimant sustained no permanent impairment as a result of his injury and that awarded attorney fees to the respondents on the ground that the claimant endorsed an issue that was not ripe. We reverse the award of attorney fees. We set aside the order determining that the claimant has zero percent medical impairment and remand for further proceedings and entry of another order. And we affirm the order awarding disfigurement benefits.
A hearing was held at the commencement of which there was a lengthy discussion regarding the issues to be determined. The claimant endorsed a number of issues for hearing; however, at the hearing he withdrew all issues but disfigurement, leaving that the only issue that he wished resolved. The respondents acquiesced to the withdrawal of the claimant's issues, and withdrew certain issues that became moot after the claimant's withdrawal of the issue of permanent partial disability benefits. However, the respondents also asserted that the ALJ should adjudicate the issue of whether the Division-sponsored independent medical examination (DIME) should be upheld on the issue of causation. The respondents also sought attorney fees for the claimant's endorsement of an issue that the respondents asserted was not ripe.
Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a work-related injury to his back on January 30, 1997. He was treated by Dr. Holmboe, who stated that he reached maximum medical improvement on February 20, 1997, with no permanent impairment.
The claimant voluntarily resigned his employment with this employer on January 29, 1998 and went to work for D D Metals. He left that employment on February 28, 2000, because he believed that he could not perform the work. Following a previous hearing, ALJ Jones ordered that these respondents pay temporary total disability benefits beginning on February 28, 2000 and continuing. Dr. Bainbridge was the authorized treating physician and on January 23, 2003, he stated that the claimant had sustained a thoracic strain without permanent impairment. He also stated that the claimant has sustained "aggravations of his pain" and that his cervical condition was caused either by subsequent employment or at home. He also stated that the claimant's right elbow problems were unrelated to the cervical problems or to any work-related injury. Dr. Bainbridge placed the claimant at maximum medical improvement on April 13, 2006 with 20 percent whole person impairment.
The claimant underwent a DIME, performed by Dr. Mitchell, who agreed with Dr. Bainbridge's date of maximum medical improvement. The DIME report stated that the claimant's cervical spondylosis, facet syndrome, and myofascial pain were unrelated to the compensable injury. The DIME physician also agreed with Dr. Bainbridge that the claimant's cervical condition and myofacial pain were not due to the work-related injury, and that the claimant's medical treatment subsequent to February 20, 1997 was not reasonable and necessary to treat the compensable injury. The DIME doctor stated that, although she believed that the issues of "relatedness" had been previously adjudicated, if they had not then the impairment resulting from the compensable injury was equal to zero percent.
The respondents filed a final admission of liability dated December 5, 2008, which admitted for 15 percent impairment of the whole person. The final admission stated that although the DIME reported that the compensable injury resulted in no impairment, the matter was previously adjudicated by ALJ Jones. The final admission further stated that the DIME reported that the claimant had 15 percent impairment if the claimant's problems were related to the injury, but that the respondents reserved the right to challenge relatedness if the claimant objected to the final admission.
The ALJ further found that on January 2, 2009, the claimant filed an application for hearing on a number of issues, including his entitlement to temporary total and temporary partial disability benefits beginning on the date of injury. On January 19, 2009, the respondents sent claimant's counsel a letter stating that the issue of temporary disability benefits was litigated before ALJ Jones and therefore was not presently ripe. At the April 22, 2009 hearing the claimant's attorney withdrew the issues of temporary total and partial disability benefits. The ALJ found that the respondents were entitled to an award of attorney fees and costs on account of the claimant's endorsement of the issue of temporary disability benefits.
I.
The claimant has not filed a brief in support of his petition to review; however, that pleading is in some respects sufficiently detailed for us to ascertain the arguments the claimant is making on appeal. The claimant first argues that the ALJ's order erroneously "fails to determine the liability of D D Metals for the Claimant's work injury." As noted previously, the ALJ found that D D Metals was the claimant's subsequent employer. However, we have not located any point in the record where the claimant sought to join D D Metals, or argued as he does now on appeal that the ALJ lacked "subject matter jurisdiction" in the absence of that respondent.
We disagree that the ALJ lacked subject matter jurisdiction over this matter. Subject matter jurisdiction involves the court's authority to deal with a class of cases. See Currier v. Sutherland, P.3d (Colo. No. 08SC587 October 19, 2009) citing Board of County Commissioners v. Collard, 827, P.2d 546, 551 (Colo. 1992). The Office of Administrative Courts ALJs, along with the Director, have original jurisdiction to hear and decide all matters arising under the Workers' Compensation Act (Act). Section 8-43-201, C.R.S. 2009; see Giddings v. Industrial Claim Appeals Office 39 P.3d 1211 (Colo. App. 2001); Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo. App. 1992). The Director and ALJs share the same powers in connection with hearings concerning any controversy over any issue under the Act, and both may issue orders. Section 8-43-207(1)(k), C.R.S. 2009. Therefore, in our view, the failure to join D D Metals here, even if it could be construed as error, is not a question of subject matter jurisdiction.
II.
The claimant next argues that the ALJ's order "inequitably abandons the law of the case in an impermissible fashion that exposes the Claimant unfairly to the risk of inconsistent adverse judgments." The law of the case doctrine is a discretionary rule, which provides that legal issues that have been litigated and decided ordinarily should not be relitigated in the same proceeding. Verzuh v. Rouse, 660 P.2d 1301 (Colo. App. 1982). The doctrine applies to decisions of law rather than to the resolution of factual questions. Mining Equipment v. Leadville Corp., 856 P.2d 81, 85 (Colo. App. 1993). Accordingly, an ALJ has the discretion to preclude the relitigation of a legal issue, which has been previously resolved in the same action. The purpose of the law of the case doctrine is efficiency of disposition, and if the prior ruling results in error or is no longer sound because of changed conditions, then the doctrine should not apply. People v. Roybal, 672 P2.d 1003 (Colo. 1983). However, the claimant does not specify in his petition to review the exact legal principles he contends should have been given preclusive effect by this ALJ. Without further specificity, we decline to speculate concerning the alleged error of which the claimant complains.
III.
However, the claimant does contend with sufficient specificity that the ALJ erred in failing to apply the doctrines of issue and claim preclusion to bar relitigation of the question of relatedness or causation. Thus, the ALJ here determined that the previous order entered by ALJ Jones did not preclude her from adjudicating the effect of the DIME on the claimant's entitlement to permanent partial disability benefits. We agree with the claimant's argument that ALJ Jones' previous order should have barred relitigation of the question of causation in the context of the claimant's permanent partial disability benefit award.
The doctrines of "issue preclusion" and "claim preclusion" generally refer to the preclusive doctrines formerly called respectively "collateral estoppel" and "res judicata." See Gallegos v. Colorado Groundwater Commission, 147 P.3d 20, 24, n. 2 (Colo. 2006) (Colorado Supreme Court has stated that it "uses the terms `claim preclusion' and `issue preclusion' instead of `res judicata' and `collateral estoppel.'") Although issue and claim preclusion are related, they are not identical. The court of appeals has noted that issue preclusion refers to a court's final decision on an issue actually litigated and decided in a previous suit as being conclusive of that issue in a subsequent suit. See Estate of Scott v. Holt, 151 P.3d 642 (Colo. App. 2006) citing Rantz v. Kaufman, 109 P.3d 132 (Colo. 2005). In contrast, the court noted that "ongoing litigation" lacks preclusive effect, while claim preclusion requires a final judgment that completes the trial court's adjudicatory process. Id. citing Smeal v. Oldenettel, 814 P.2d 904 (Colo. 1991). Here, the question whether the claimant's various conditions were caused by or related to his industrial injury was an issue within the context of the larger workers' compensation claim. ALJ Jones's order on the issue of causation was not a "final judgment that completed] the . . . adjudicatory process." See Brown and Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo. App. 1991). Hence, the principles of issue preclusion are applicable rather than those of claim preclusion.
Issue preclusion is an equitable doctrine that bars relitigation of an issue that has been finally decided by a court in a prior action. Bebo Construction Co. v. Mattox O'Brien, 990 P.2d 78, 84 (Colo. 1999). Its purpose is to relieve parties of the burden of multiple lawsuits, to conserve judicial resources, and to promote reliance upon and confidence in the judicial system by preventing inconsistent decisions. Id. Although issue preclusion was conceived as a judicial doctrine, it has been extended to administrative proceedings, where it "may bind parties to an administrative agency's findings of fact or conclusions of law." Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001). See also Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo. App. 2006). The supreme court has stated that:
Issue preclusion bars relitigation of an issue if: (1) the issue sought to be precluded is identical to an issue actually determined in the prior proceedings; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.
Sunny Acres Villa, Inc., 25 P. 3d at 47.
Here, we agree with the claimant's argument that preclusive principles should operate to bar relitigation in this proceeding of the relatedness of the claimant's other conditions. It seems undisputed that the parties in the two proceedings were the same, and that ALJ Jones' order became final when appeal proceedings were exhausted. Moreover, we reject the respondents' argument that they did not have a full and fair opportunity to litigate the issue because subsequent information was not then available to them. In our view the "fairness" of their opportunity to litigate implicates a party's incentive to vigorously defend its position rather than whether some evidence or information might be yet to be developed. Sunny Acres Villa, Inc., 25 P.3d at 46. Additionally, a party might have been deprived of the opportunity to fully litigate an issue where the proceedings were not "commensurate." However, here, merely because the DIME had not occurred at the time the claimant litigated the issues of relatedness did not deprive the respondents of the opportunity to fully litigate the question. See Holnam v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo. App. 2006) (claimant was precluded from relitigating the issue whether he sustained an occupational disease, despite different legal theories of recovery).
The dispositive question in determining whether issue preclusion is applicable thus appears to be whether ALJ Jones resolved an issue that was identical to that litigated before the ALJ. In our view the issues were the same. ALJ Jones weighed the medical record and rejected portions of the opinions of Dr. Hughes and Dr. Bainbridge in favor of the lay testimony of the claimant and the expert opinions of Dr. Haney, and Dr. Centeno. She found that the claimant's disputed conditions at that time, including his cervical condition, were related to his injury sustained while working for this employer. Accordingly, she ordered temporary total disability benefits and medical benefits paid on account of those conditions. In our view the issue of causation or relatedness resolved by ALJ Jones was the same as the issue litigated before this ALJ and the doctrine of issue preclusion barred a different result.
We are guided in our resolution of this by the court of appeals' opinion in Grand County v. Industrial Claim Appeals Office, Colo. App. No. 07CA0424 (April 24, 2008) (not selected for publication). In Grand County we rejected the application of issue preclusion to two successive proceedings where in the first the ALJ determined that medical treatment was not causally related to the industrial injury and in the second proceeding the ALJ determined that it was. We concluded that the issues in the two proceedings, both involving the relatedness of the treatment to the injury, were not identical, in part because the second proceeding involved a DIME. However, the court set aside our order, ruling that the issues were identical because in both proceedings the claimant sought the same medical treatment. Here we infer from Grand County that the issues of causation or relatedness were identical in both proceedings. We understand that the court has emphasized that unpublished opinions have no precedential force or value. However, here we do not consider that we are bound by the opinion, but merely take guidance from it. In our view the legal analysis in that unpublished opinion is sound, correct, should be followed here.
Accordingly, we reverse the ALJ's order determining that the claimant sustained zero percent impairment as a result of the industrial injury. On remand, the ALJ should enter an order consistent with our view that the respondents were barred from relitigating the issue of causation. Under these circumstances it is unnecessary for us to address the claimant's argument that the respondents should not have been permitted to withdraw their admission for the DIME impairment rating of 15 percent of the whole person.
IV.
The claimant also argues that the ALJ erred in awarding attorney fees to the respondents. Specifically, the claimant argues that the ALJ erred in concluding that the issue of temporary total disability benefits was not ripe. We agree and therefore reverse the award of attorney fees and costs.
Section 8-43-211(1)(d), C.R.S. 2009 provides that "[i]f any person requests a hearing or files a notice to set a hearing on issues which are not ripe for adjudication at the time such request or filing is made, such person shall be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing or setting."
The term "ripe for adjudication" is not defined by the statute. However, in Olivas-Soto v. Industrial Claim Appeals Office 143 P.3d 1178 (Colo. App. 2006) the court noted that generally ripeness tests whether an issue is real, immediate, and fit for adjudication. Under that doctrine, adjudication should be withheld for uncertain or contingent future matters that suppose a speculative injury, which may never occur. In Olivas-Soto, the court agreed with the Panel that the issue of permanent total disability (PTD) benefits was legally ripe for adjudication when claimant filed his first application for hearing. The final admission of liability and the DIME placing claimant at MMI removed any legal impediment to a determination of his eligibility for PTD benefits, and, as the ALJ recognized, claimant's subsequent challenge to the DIME posed no such impediment, at least not until claimant might succeed in overcoming the DIME, an outcome never achieved. In Olivas-Soto, the Panel had discussed the meaning of the term "ripe for hearing" and noted that the term refers to a disputed issue concerning which there is no legal impediment to immediate adjudication. Olivas-Soto v. Genesis Consolidated Services, W. C. No. 4-518-876 (November 02, 2005).
Here the respondent contends that at the time the claimant filed the application there was no real, or immediate issue fit for adjudication between the claimant and the respondents. The respondents argue that the issue of temporary total disability benefits was previously resolved by ALJ Jones and that claim or issue preclusion bars relitigation of that issue. However, in our view the respondents' argument goes to the issue of whether the claimant's application for hearing was meritorious and not whether the issue was ripe for determination. In this regard, although we do not determine that the claimant's endorsement of temporary total disability benefits was frivolous, we note that the Workers' Compensation Act formerly provided for the assessment of attorney fees in frivolous actions. That section was repealed effective March 1, 1996 and attorney fees are not generally available as a sanction for endorsing an issue without merit. Colo. Sess. Law 1991, ch. 219, § 8-43-216(1) at 1321. And, an issue that lacks merit does not necessarily lack ripeness. The two concepts are distinct and a frivolous or meritless claim may nonetheless be ripe for adjudication.
Here, as we understand the ALJ's order, she concluded that the issue was not ripe because claim or issue preclusion barred relitigation of the issue. However, those doctrines constitute defenses that must be proved in order for the respondents to prevail. The successful application of the doctrine of issue preclusion, for example, requires that there were commensurate proceedings available in the earlier proceeding and that the party against whom the doctrine is applied had the same incentive to defend itself as in the subsequent proceedings. Sunny Accres Villa, Inc. v. Cooper, supra. These are among the factual showings that must be made before the proponent of the doctrines of issue and claim preclusion will be successful. The claimant is not required to determine the likelihood that a particular defense will be successful in assessing whether an issue is ripe. As noted, that assessment is relevant to the question of merit, but not to the question of ripeness. Indeed, we note that in this case the ALJ determined that the same principles of claim and issue preclusion did not bar the relitigation of another issue previously decided by ALJ Jones.
In our view, the essence of the doctrine of ripeness is whether there is some "uncertain or contingent future matter" that must be resolved. The unresolved contingency renders the issue speculative, pending the resolution of the uncertain "future matter." For example, in BCW Enterprises, Ltd. v. Industrial Claim Appeals Office 964 P.2d 533 (Colo. App. 1997) the court held that a request for penalties predicated on a claim that an appeal had been taken in bad faith must await the adjudication of that appeal before it becomes ripe for determination. In BCW the claimant's attorney was found liable for attorney fees under § 8-43-211(2)(d). The claimant's attorney filed an application for hearing seeking penalties against the respondents for filing a "bad faith appeal" before the appeal was resolved. The court in BCW noted the respondents' appeal was ultimately successful, and concluded that a request for penalties predicated on a claim that an appeal has been taken in bad faith must await the adjudication of the appeal before it becomes ripe for determination. Id. at 538. Thus, the court was persuaded that the reasonableness of the insurer's appeal could not be meaningfully adjudicated until the appeal was finally resolved and, therefore, the penalty issue was not "ripe" when the application for hearing was filed.
In contrast, here there is no such legal impediment to the immediate and meaningful adjudication of the claimant's entitlement to temporary total disability benefits. That the claimant evaluated the claim and determined that it had insufficient merit to warrant proceeding to hearing does not render the issue not ripe. The availability of a defense (such as issue preclusion) that is likely to be successful may render the endorsement of temporary total disability benefits in this case imprudent, futile, or even frivolous, but it does not deprive the issue of ripeness. The sort of "legal impediment" that renders an issue not ripe is not merely a procedural or substantive defense that may or may not be successful after trial. If that were the case, then any losing party could be accused of having endorsed an issue that was not ripe. That is not the case and we therefore reverse the award of attorney fees and costs.
V.
Insofar as the claimant makes other arguments, it is unnecessary for us to address them in light of our resolution of the arguments dealt with above. Of course, we have no jurisdiction to address and resolve his constitutional arguments. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ's order dated July 21, 2009, insofar as it awards attorney fees and costs to the respondents is reversed.
IT IS FURTHER ORDERED that the ALJ's order dated July 21, 2009 insofar as it determines that the claimant sustained zero percent medical impairment as a result of the industrial injury is set aside and the matter is remanded for an order consistent with the foregoing. IT IS FURTHER ORDERED that the ALJ's order dated July 21, 2009 insofar as it awards disfigurement benefits is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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DOUGLAS YOUNGER, HENDERSON, CO, (Claimant).
MERRITT EQUIPMENT COMPANY, Attn: STAN RASSMUSSEN, HENDERSON, CO, (Employer).
FIREMAN'S FUND INSURANCE COMPANY, Attn: GERALDINE LACY, SACRAMENTO, CA, (Insurer).
IRWIN BOESEN PC, Attn: CHRIS L INGOLD, ESQ., DENVER, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, Attn: DAVID J DWORKIN, ESQ., C/O: YORK, BENSON EVANS PC, DENVER, CO, (For Respondents).