Opinion
W.C. No. 4-671-535.
August 8 2007.
FINAL ORDER
The claimant and the respondents both seek review of an order of Administrative Law Judge Henk (ALJ) dated March 12, 2007 that dismissed the claim for a lumbar spine condition based on a theory of occupational disease and that denied the respondents' request for attorney fees. We affirm.
This case has a complex procedural history, which we will summarize to the extent it is relevant to the issues here. This hearing was held on October 5, 2006; however, the matter was previously heard before ALJ Henk on April 27, 2005. At the previous hearing the issues litigated included the compensability of specific injuries to the claimant's back sustained on November 24, 1999 and November 2000. In her order of June 13, 2005, ALJ Henk found that the claimant sustained a work-related injury to his back when he was struck by a forklift on November 24, 1999, which temporarily aggravated the claimant's long-standing back problems. ALJ Henk also found that the claimant sustained a specific injury to his back in November 2000 that temporarily aggravated his back problems but she also concluded that a claim based on this injury was barred by the statute of limitations.
In December 2005 the claimant filed a new claim which is the subject of the present appeal. This new claim was filed against the same respondents alleging an occupational disease of the claimant's back caused by his work for the employer from 1997 to May 3, 2002, when he left his employment. Under the new claim the claimant sought benefits for lost time from work following his back surgery on March 7, 2005. The claimant also sought a determination that the respondents were liable for the surgery and for related medical treatment. The claimant had requested these same benefits at the April 27, 2005 hearing, contending at that time that the lost time and medical benefits were caused by the November 24, 1999 injury.
ALJ Henk's pertinent findings of fact on the specific issue of claim preclusion are as follows. The order of June 13, 2005 was a final order. There was identity of subject matter because both hearings involved the scope of the employer's liability for the injuries to the claimant's back that he asserted arose out of industrial injuries and his employment prior to and subsequent to the November 24, 1999 and November 2000 injuries. The parties to both hearing were the same. The only remaining dispute was whether there was an identity of claims for relief between the two hearings.
Relying upon Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo.App. 2006) cert. denied, May 21, 2007, the ALJ noted that in analyzing whether there is an identity of claims for relief, the focus is not on the specific claim asserted or the name given to the claim. Instead, the same claim or cause of action requirement is bounded by the injury for which relief is demanded, and not by the legal theory on which the person asserting the claim relies. Quoting from Holnam, the ALJ further noted that claim preclusion bars relitigation not only of all claims actually decided, but of all claims that might have been decided if the claims are tied by the same injury.
The ALJ found that the claimant was alleging an occupational disease to his back caused by his work for the employer from 1997 to May 3, 2002. At the April 27, 2005, hearing the claimant argued that his back condition was caused by a specific injury on November 24, 1999, and a specific injury in November 2000. Applying the holding in Holnam ALJ Henk found that there were not two separate injuries because in both claims, the injury for which compensation was sought was the lumbar condition. Therefore, under Holnam the ALJ found the claimant was precluded from relitigating his back condition based on an occupational disease theory. ALJ Henk dismissed the claim for a lumbar spine condition based on the theory of occupational disease.
The respondents requested attorney fees pursuant to § 8-43-211(2)(d), C.R.S. 2006, which provides that a party who requests a hearing on issues that are not ripe for adjudication shall be assessed reasonable attorney fees and the costs of opposing party. The respondents argued that the issue whether the claimant sustained an occupational disease was not ripe for adjudication because that issue had already been resolved by the June 13, 2005 order. The ALJ denied the respondents' request for attorney fees.
I.
On appeal the claimant contends that the elements for claim preclusion were not met in this case and that compelling reasons exist to preclude the application of the doctrine. In our view the ALJ correctly applied the holding in Holnam and we are therefore bound to affirm.
For a claim in a second proceeding to be precluded by a previous judgment, there must exist (1) finality of the first judgment, (2) identity of subject matter, (3) identity of claims for relief, and (4) identity of or privity between parties to the actions. Cruz v. Benine, 984 P.2d 1173, 1176 (Colo. 1999).
On the first element of claim preclusion the claimant denies the finality of the first judgment. We disagree. The claimant sought review of ALJ Henk's dated June 13, 2005, which awarded medical benefits and denied temporary disability benefits. We affirmed the order of ALJ Henk. Esola v. Publication Printers Corp. W. C. Nos. 4-631-019 and 4-639-698 (October 07, 2005). The claimant did not pursue any further appeal and therefore the order became final. Section 8-43-301(10) C.R.S. 2006.
The claimant next contends that there was not identity of the subject matter because the evidence to prove the later claim for occupational disease was different from the evidence necessary to prove an accidental injury. We agree with ALJ Henk that there was identity of subject matter because at both hearings the issue was the scope of the respondent's liability for the same injury to or impairment of the claimant's back. Holnam, Inc. v. Industrial Claim Appeals Office, supra. ALJ Henk found that at both the first and second hearing the claimant sought a determination that the respondents were liable for the March 2005 surgery, the related treatment and the lost time from work following the back surgery. We note that precisely this argument was rejected in Holnam, and we are, of course, bound to follow the published opinions announced by the court of appeals.
The claimant's further contention that there was no identity of or privity between parties to the action is also without merit. The claimant states that after the initial hearing, which denied the claim for temporary disability benefits following the March 7, 2005 surgery, the claimant filed an occupational disease claim against a different employer. It appears that the claimant settled that claim with the other employer and, in any event, we do not see the relevance of a claim filed against another employer on the issue presented here. As ALJ Henk determined, the parties were the same at both the hearing held on April 27, 2005 and the hearing on October 5, 2006.
The claimant next contends that there was no identity of claims for relief. In our view, the court of appeals' decision in Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo.App. 2006) cert. denied, May 21, 2007, is dispositive on that question. In Holnam the panel had concluded that issue preclusion did not apply, incorrectly reasoning that the issue sought to be determined in the second proceeding (whether there was an occupational disease caused by the duties and conditions of the claimant's modified employment) was different from the issue actually determined in the prior proceeding (whether the cervical spine condition was directly aggravated by the 1999 injury, or whether the cervical symptoms were a natural and proximate result of the 1999 injury).
In setting aside our order the court of appeals noted that claim preclusion works to bar the relitigation of matters that have already been decided as well as matters that could have been raised in a prior proceeding but were not. Argus Real Estate, Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604 (Colo. 2005). Claim preclusion protects "litigants from the burden of relitigating an identical issue with the same party or his privy and . . . promote[s] judicial economy by preventing needless litigation." Lobato v. Taylor, 70 P.3d 1152, 1165-66 (Colo. 2003) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552 (1979)).
Here as in Holnam the claimant at one time alleged an occupational disease to his back caused by his work for the employer and at another time by a specific injury. We agree with the ALJ that, based upon Holnam, these were not two separate injuries. In both claims, the injury for which compensation was sought was the lumbar condition and, therefore, the claimant is precluded from relitigating the cause of his back condition based on an occupational disease theory.
II.
The respondents also appealed the order and contend that ALJ Henk erred by holding that the issue of claim preclusion was ripe for determination, therefore denying the respondents' request for attorney fees pursuant to § 8-43-211(2)(d) C.R.S. 2006. The respondents generally argue that claim preclusion was only a defense asserted by the respondents and it was the issue of compensability that was not ripe for adjudication because it had been previously resolved by ALJ Henk's June 15, 2005 order.
The respondents had filed a motion for summary judgment after the claimant filed an application for hearing which led to the order here under appeal. In the motion for summary judgment the respondents generally argued that the claim had been previously adjudicated in their favor and further that the claim was barred by the statute of limitations. ALJ Coughlin in an order dated May 10, 2006 denied the motion for summary judgment. Exhibit O at 150. ALJ Coughlin determined that the respondents had failed to prove that they were entitled to judgment as a matter of law on the issues of the affirmative defenses of collateral estoppel and res judicata. ALJ Coughlin further determined that there were genuine issues of material fact existing for trial on the issue of whether the statute of limitations had run.
Section 8-43-211(2)(d), provides for the imposition of costs and attorney fees against a person requesting or setting a hearing "on issues which are not ripe for adjudication." The issue of "ripeness" under this statute was considered in BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). In BCW Enterprises an ALJ ordered a change of physician and the respondents appealed. During the pendency of the appeal the claimant applied for a hearing on the issue of penalties against the respondents because the appeal was allegedly taken in "bad faith" and was delaying the provision of necessary medical treatment. Ultimately, the court of appeals resolved the appeal in the respondents' favor. The respondents sought attorney fees and costs against claimant's counsel under § 8-43-211(2)(d) on the ground that the issue of penalties for a bad faith appeal was not "ripe" until the appeal was determined.
The BCW Enterprises court held an appeal is not in bad faith if there is a reasonable basis for challenging the award, and that it would be illogical to impose sanctions for a bad faith appeal if the appellant is successful on appeal. Consequently, the court stated "a request for penalties predicated on a claim that an appeal has been taken in bad faith must await the adjudication of that appeal before it becomes ripe for determination." Thus, BCW Enterprises generally stands for the proposition that an issue is not "ripe for adjudication" if, under the statutory scheme, there is a legal impediment to its resolution. The legal impediment in BCW Enterprises was the prospect of inconsistent results if the penalty claim was considered "ripe" for adjudication during the pendency of the appeal.
We agree with the ALJ that when the claimant filed his application for hearing alleging an occupational disease the defense asserted by the respondents of claim preclusion was ripe for determination. Ripeness requires an actual case or controversy between the parties that is sufficiently immediate and real so as to warrant adjudication. See generally Jessee v. Farmers Ins. Exch., 147 P.3d 56 (Colo. 2006); Beauprez v. Avalos, 42 P.3d 642 (Colo. 2002). In general under the doctrine of ripeness courts will not consider uncertain or contingent future matters because the injury is speculative and may never occur. See generally Stell v. Boulder County Dep't of Social Svcs., 92 P.3d 910,(Colo. 2004). Thus in BCW Enterprises the request for penalties predicated on a claim that an appeal has been taken in bad faith must await the adjudication of that appeal before it becomes ripe for determination and so imposition of attorney fees pursuant to § 8-43-211(2)(d) C.R.S. 2006 was proper. Here there was a real and immediate controversy between the parties regarding whether the claimant suffered from an occupational disease. The fact that there was an affirmative defense did not prevent the case from being ripe. There was no contingent future matter such as the attainment of maximum medical improvement or a determination of permanent impairment that was incomplete. In the present case there was nothing that had to be resolved before the issue of occupational disease and any attendant affirmative defense could be decided. Moreover, there was an actual dispute concerning whether the claimant suffered from an occupational disease, the claim for which was not barred by preclusion principles. The claim was real, immediate, and was not speculative. It was therefore ripe when brought and the mere fact that the respondents ultimately prevailed on their theory of the defense does not retroactively destroy the claim's ripeness for adjudication. We are therefore not persuaded to set aside the ALJ's denial of the respondents' claim for attorney fees and costs.
IT IS THEREFORE ORDERED that the ALJ's order dated March 12, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
Michael Esola, Englewood, CO, Kevin C. Smith, Esq., Kevin C. Smith Attorney at Law, PC, Cypress Point, Denver CO, (For Claimant).
Publication Printers, Teresa Herman, Denver, CO, Kristin A. Caruso, Esq., McElroy, Deutsch, Mulvaney Carpenter, LLP, Denver CO, (For Respondents).
Liberty Mutual Insurance Company, Teresa L. Manshardt, Englewood, CO, Ryan McManis, Ruesegger, Simons, Smith Stern LLC, Denver CO.