Opinion
W.C. No. 4-679-526.
February 28, 2008.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Harr (ALJ) dated October 4, 2007, that granted the claimant's petition to reopen and that ordered the respondent to pay temporary total disability benefits from January 24, 2007 to August 14, 2007. We affirm.
A hearing was held on the issues of whether the claimant's condition had worsened, whether he was entitled to temporary total disability benefits, and whether his petition to reopen was precluded by equitable doctrines of preclusion. Following the hearing the ALJ entered factual findings that for the purposes of this order may be summarized as follows. On February 17, 2006, the claimant sustained a compensable injury to his low back while working as a baggage handler. The claimant's authorized treating physician, Dr. Robert Kawasaki, diagnosed chronic recurrent low back pain and treated the claimant with epidural steroid injections, facet joint injections, a transforiminal block, and physical therapy. He placed the claimant at maximum medical improvement on September 5, 2006, with permanent work restrictions precluding lifting and carrying of greater than 90 pounds. Dr. Kawasaki also imposed restrictions permitting occasional lifting of 40 pounds and constant lifting of ten pounds while the claimant was working in the baggage area of the airplane. The respondent obtained a Division-sponsored independent medical examination (DIME), which was performed on January 4, 2007, and which reported permanent impairment without apportionment. A hearing was subsequently held in May 2007, following which ALJ Cain apportioned the claimant's permanent impairment and ordered the respondent to pay benefits based on a two percent impairment rating. On January 16, 2007, the claimant had consulted Dr. Kawasaki, who diagnosed a "flare-up" of the claimant's symptoms. Dr. Kawasaki referred the claimant for an MRI and imposed additional physical restrictions. He subsequently compared the MRI results with those previously obtained in April 2006 and found no significant changes. Dr. Kawasaki also administered treatment that included medial branch blocks and he recommended a rhizotomy, which was performed in June 2007. The claimant reported to Dr. Kawasaki that his symptoms improved significantly, and the doctor permitted the claimant to lift up to 40 pounds. However, Dr. Kawasaki recommended that the claimant not return to his work as a baggage handler.
On May 30, 2007, the claimant filed a petition to reopen for a change in condition. The ALJ found that the claimant's condition worsened after January 24, 2007, which was the date upon which Dr. Kawasaki precluded the claimant from working as a baggage handler. The ALJ also found that the claimant was precluded by his injury from performing his regular work from January 24, 2007, to August 14, 2007, when Dr. Kawasaki again placed the claimant at maximum medical improvement. Based upon his factual findings the ALJ reopened the claim and awarded temporary total disability benefits from January 24, 2007, to August 14, 2007.
The ALJ also rejected the respondent's argument that the claimant was precluded from seeking reopening by principles of claim or issue preclusion. The ALJ reasoned that the order previously entered by ALJ Cain did not address the issue of the claimant's possible worsening after maximum medical improvement, nor was that issue litigated before him. Therefore, the ALJ concluded that the doctrines of issue and claim preclusion were inapplicable and did not bar the claimant's subsequent petition to reopen.
I.
The respondent appealed the ALJ's order and first argues that the ALJ erred in refusing to apply the doctrine of claim preclusion to bar the claimant's petition to reopen. The respondent argues that at the previous hearing the claimant had a full and fair opportunity to litigate the question whether he had reached and remained at maximum medical improvement. The respondent argues that his failure to present and litigate that question later precluded him from reopening based upon a worsened condition that existed at the time of the previous hearing. We are unpersuaded by the respondent's argument.
First, although the respondent characterizes the question as one of "claim preclusion," in our view it more properly comes within the category of "issue preclusion." 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.'") 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). In our view, the question whether the claimant had reached and remained at maximum medical improvement (or whether his condition had worsened) was the resolution merely of an issue within the context of the larger workers' compensation claim. ALJ Cain's order 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 disagree with the respondent's argument that preclusive principles operated to bar the claimant's later petition to reopen. The respondent appears to concede that the issue of the claimant's worsened condition was not one that was actually litigated by the parties, nor was it decided by ALJ Cain in the previous proceeding. However, the respondent relies upon the principle that issues that could have been litigated are precluded from being raised later. The respondent argues that the "factual and legal basis of claimant's request to reopen" was available to him prior to the May 2007 hearing and that his failure to raise that issue precludes its later adjudication. In our view, the court of appeals' opinion in Berg v. Industrial Claim Appeals Office, 128 P.3d 270 (Colo.App. 2005) resolves this issue against the respondent. In Berg the claimant underwent a DIME and the claim was closed based upon its uncontested report. Shortly thereafter the claimant petitioned to reopen the claim on the basis that the DIME physician was "mistaken" regarding the claimant's having reached maximum medical improvement. The court of appeals held that permissive reopening was available to the claimant to attack the DIME physician's report after the respondents filed a final admission of liability and the claim closed. The court reasoned that the statutory authority to reopen "any award" is broad and that nothing in the subsequently enacted DIME procedures was intended to restrict that authority. Although the court noted in Berg that the ALJ retained the discretion to deny improper collateral attacks on the DIME report, nothing in the opinion compels the conclusion that the claimant here engaged in such a tactic. Moreover, as we read the ALJ's order, he concluded that this was not the sort of improper collateral attack on the DIME opinion to which the court referred in Berg. In our view Berg also recognizes that the issues inherent in challenging a DIME report are not identical to those regarding reopening and Berg therefore permits reopening under the present circumstances.
We recognize that there may be some tension between the strict application of the preclusive doctrines urged by the respondent and the broad discretion afforded the Director and the ALJs in deciding whether to reopen a claim for the adjustment of benefits previously awarded. E.g., Wallace v. Industrial Commission, 629 P.2d 1091 (Colo.App. 1982) (reopening statute is purely permissive and vests broad discretion regarding whether to reopen); Renz v. Larimer County School District, W.C. No. 2-896-485 (July 12, 1995) (ALJ's authority to reopen is broad). In this respect we note that reopening is sometimes permitted even when a previous order closing an issue was not appealed and was therefore permitted to become final. E.g., Martinez v. Durango 4-C Council, W.C. No. 3-101-724 (January 27, 1995). Moreover, we have previously rejected the application of the principle of res judicata to a case involving reopening, based upon the broad discretion afforded in the area of reopening. Hernandez v. Cattle King Beef Company, 3-714-045 (February 26, 1988) (noting that the ALJ had the discretion to reopen sua sponte in the absence of a petition to reopen.) In our view, our resolution of this issue furthers the legislative policy incorporated in the Workers' Compensation Act that favors a just result over the interest of the litigants in a final resolution of the claim. Padilla v. Industrial Commission, 696 P.2d 273 (Colo. 1985). Despite the doctrine of issue preclusion, the ALJ retained the discretion to reopen the claim pursuant to the petition to reopen filed after the entry of ALJ Cain's order. We therefore reject the respondent's argument that the claimant's failure to litigate the issue of the worsening of his condition at his previous hearing precluded him from raising it at a subsequent date.
II.
The respondent also argues that the ALJ erred in awarding temporary total disability benefits from January 24, 2007, where the claimant only requested those benefits from February 21, 2007. Under the circumstances of this case, we disagree that the ALJ erred.
It is well-established that a party has the right to procedural due process, which generally requires that the party be provided with notice and an opportunity to be heard. Avalanche Industries, Inc. v. Industrial Claim Appeals Office, 166 P.3d 147 (Colo.App. 2007), cert. granted,( Aug. 27, 2007); Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). The essence of procedural due process is that the proceedings be fundamentally fair. City and County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). Due process also requires that a party have advance notice of the issues to be adjudicated at the hearing. Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987). Due process contemplates that the parties will be apprised of the evidence to be considered, and afforded a reasonable opportunity to present evidence and argument in support of their positions. Inherent in these requirements is the rule that parties will receive adequate notice of both the factual and legal bases of the claims and defenses to be adjudicated. See Hendricks v. Industrial Claim Appeals Office, supra, 1077.
Here, the respondent had sufficient notice that the claimant was seeking temporary total disability benefits following the reopening of his claim. Although it is true that the claimant requested temporary total disability benefits from February 21, 2007, and ongoing, tr. at 6, it was within the ALJ's discretion to select a different date. Here, the ALJ found with record support that the claimant's condition worsened as of January 24, 2007, when Dr. Kawasaki imposed restrictions and precluded the claimant from performing his regular work. The respondent has not argued that it was surprised by the evidence that the claimant could not perform his regular work as of that date, or that Dr. Kawasaki's report was otherwise inadmissible. Nor has the respondent argued that it would have prepared differently to defend against the claim that temporary total disability benefits should have been reinstated as of January 24th rather than February 21st. Under these circumstances, we conclude that the respondent's notice of the claim for temporary total disability benefits was sufficient and, in any event, any error on the ALJ's part did not affect a substantial right of the respondent's and was therefore harmless. Finally, in this regard we note that the relief requested by the respondent was the entry by the ALJ of a supplemental order modifying the date on which the temporary total disability benefits begin. We infer from the ALJ's transmittal of the appeal to us that he rejected that requested relief. The respondent has not requested that we remand the matter for additional proceedings and under the circumstances here we decline to do so.
IT IS THEREFORE ORDERED that the ALJ's order issued October 4, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
RICHARD BURNES, AURORA, CO, (Claimant).
UNITED AIRLINES, DENVER, CO, (Employer).
LAW OFFICE OF O'TOOLE SBARBARO, PC, Attn: NEIL O'TOOLE, ESQ., DENVER, CO, (For Claimant).
RITSEMA LYON, Attn: LYNN P LYON, ESQ, DENVER, CO, (For Respondents).
GALLAGHER BASSETT, Attn: MELISSA RYAN, ENGLEWOOD, CO, (Other Party).