Opinion
W.C. No. 4-307-819.
June 7, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated November 16, 2006, that found the claimant had failed to overcome the opinion of the Division-sponsored independent medical examination (DIME) physician and that the claimant had waived the issue of res judicata. We affirm.
The ALJ Walsh's pertinent findings of fact are as follows. The claimant attended a hearing in February 1997, to determine whether she had sustained a compensable repetitive motion injury as a result of her work as a custodian for the employer. On April 2, 1997 ALJ Martinez issued an order holding that the claimant had in fact sustained a work-related occupational injury and that her right carpal tunnel symptoms were work-related. There is no indication in the order that the claimant was suffering from any injury other than carpal tunnel syndrome. Additionally there was no indication of any problems other than the wrist issue between September 1996 and January 1997, a period of over four months.
Dr. Worwag conducted an independent medical evaluation of the claimant on November 5, 1998 and concluded that the claimant had reached maximum medical improvement (MMI) and gave the claimant an impairment rating of ten percent of her right upper extremity. Dr. Worwag felt that in regard to the wrist injury the claimant could return to full work without restrictions. Dr. Klingbeil performed a Division-sponsored independent medical examination on February 14, 2000. Dr. Klingbeil determined that the claimant was at MMI and agreed with Dr. Worwag that the patient's date of MMI was November 5, 1998. Dr. Klingbeil assigned the claimant a ten percent upper extremity impairment for her residual medial nerve problems. Dr. Klingbeil determined that the claimant had no residual ulnar nerve impairment and further determined that the claimant's brachial plexus neuropathy was not work-related. The claimant applied for a hearing to overcome the DIME physician's opinion.
A second hearing before ALJ Martinez was scheduled for July 6, 2000. ALJ Martinez overruled as inaccurate the opinion of the DIME physician Dr. Klingbeil. As a result of the hearing the claimant continued to receive treatment. On December 23, 2004 Dr. Price placed the claimant at MMI for her work-related injuries and assigned the claimant a 13 percent whole person impairment for her cervical spine, a seven percent scheduled injury impairment for her left lower extremity deep vein thrombus, and a 14 percent scheduled injury impairment for her right upper extremity, which included the claimant's complaints of shoulder, elbow and wrist pain and the claimant's thoracic outlet, carpal tunnel and Guyon canal releases. The claimant disagreed with Dr. Price's impairment rating and requested a DIME, which was performed by Dr. Sacha on November 2, 2005. Dr. Sacha indicated that the claimant's brachial plexus/thoracic outlet symptoms were not work-related. As a consequence, Dr. Sacha indicated that the blood clot, resulting from the claimant's thoracic outlet surgery, was not work-related. The only conditions Dr. Sacha felt were work-related were the claimant's wrist pain, ulnar neuropathy, and carpal tunnel syndrome, as well as the major depressive disorder. Dr. Sacha assigned claimant a ten percent upper extremity rating for her wrist problems and a two percent whole person rating for psychological impairment. Dr. Sacha opined that the DIME completed by Dr. Klingbeil was very accurate and Dr. Sacha agreed with Dr Klingbeil that November 5, 1998 was the appropriate date for MMI. The claimant sought to overcome the DIME performed by Dr. Sacha.
ALJ Walsh found that the opinions of Dr. Sacha were persuasive that there was a lack of objective findings to indicate a causal connection for most of the claimant's conditions. ALJ Walsh found that the claimant had not overcome the DIME of Dr. Sacha by clear and convincing evidence. ALJ Walsh found the claimant had reached MMI on November 5, 1998, that the claimant's only work related injuries were carpal tunnel syndrome and ulnar neuropathy, and ordered the respondents to pay benefits based upon Dr. Sacha's impairment rating. ALJ Walsh further found that the respondents were not responsible for payment of a May 22, 2005 emergency room bill from Community Hospital, which the claimant incurred as a result of abdominal pain caused by constipation stemming from the claimant's use of non-work related narcotic medications. The respondents were not responsible for payment of treatment rendered by Dr. Haitz at Brady Chiropratic. ALJ Walsh ordered the respondents to pay for reasonable and necessary treatment to maintain the claimant at MMI in accordance with the recommendation of Dr. Sacha. The respondents were found by ALJ Walsh to be entitled to collect any overpayment of benefits.
On appeal the claimant argues that ALJ Walsh erred in failing to apply the principles of res judicata. The claimant contends that the issue of the relatedness of the claimant's brachial plexus injury was previously litigated before ALJ Martinez at the July 6, 200 hearing. ALJ Martinez determined that the claimant's brachial plexus condition was work-related and that the claimant had not reached MMI on November 5, 1998. Therefore, the claimant contends that res judicata applies and the respondents should not be permitted to re-litigate the issue of the relatedness of the claimant's brachial plexus or thoracic outlet syndrome.
In his order of August 17, 2000 following the July 6, 2000 hearing, ALJ Martinez set aside the opinion of the Dr. Klingbeil as the DIME physician that the claimant had reached MMI. Exhibit 20. ALJ Martinez specifically found that the claimant had demonstrated by clear and convincing evidence that she had brachial plexus neuropathy which was causally related to her May 13, 1996 work injury. Findings of Fact, Conclusions of Law, and Order at 6, ¶ 3; Exhibit 20. ALJ Martinez further ordered the respondents to continue to pay temporary total disability benefits and continued medical benefits until her authorized treating physician, Dr. Berkely, placed her at maximum medical improvement for her brachial plexus neuropathy. ALJ Walsh, in considering the claimant's argument that he was bound by the causation determination of ALJ Martinez, concluded that res judicata, collateral estoppel, and/or issue preclusion did not preclude the issues from being determined by him de novo.
ALJ Walsh first noted that the respondents had objected to ALJ Walsh considering the res judicata argument because it must be affirmatively pled. ALJ Walsh agreed with the respondent's argument. The claimant did not cite the issue in her application for hearing as an issue to be heard by ALJ Walsh. The respondents objected to the issue being raised at the hearing. Tr. at 8. The claimant notes that she addressed the issue in her position statement and contends that the issue of res judicata was addressed in the deposition of Dr. Price. However, the position statement was filed after the hearing and ALJ Martinez's order was used for purposes of cross examination in the deposition of Dr. Price. Price Depo. at 74-75. This issue was raised with Dr. Price in the second part of his deposition taken on September 13, 2006, taken after the hearing on August 16, 2006. The issue was not raised with Dr. Price in the first part of Dr. Price's deposition taken by claimant's counsel on August 10, 2006 before the hearing.
In order to take advantage of res judicata and collateral estoppel the proponent must in a timely fashion affirmatively plead them or they are waived. See Kersting v. Industrial Commission, 39 Colo. App. 567 P.2d 394 (1977). Collateral estoppel and res judicata must be pleaded prior to the hearing, and the mere mention of the defense in a brief or other pleading is not sufficient. See Trujillo v. Farmers Insurance Exchange, 862 P.2d 962 (Colo.App. 1993); See majority opinion in Mahana v. Grand County W.C. No. 4-430-788 (February 15, 2007).
The Office of Administrative Courts Rules of Procedure "OACRP" specifically addresses what issues will be heard at a scheduled hearing. It is provided in OACRP 12 that:
"Issues for hearing may be added before the date of the setting by written notice to the OAC and the opposing party. After the date of the setting, issues may only be added by written agreement of the parties or order of a judge or designee clerk for good cause shown."
1 Code Colo. Reg 104-3 at 6.
The claimant made no attempt at showing good cause why, having failed to raise the issue of res judicata in her application for hearing, it should be added as an issue for hearing by reference in either the claimant's opening statement at the time of the hearing or in her position statement filed after the hearing. Under the circumstances we perceive no basis on which to interfere with the ALJ's determination that the claimant failed to affirmatively plead res judicata and therefore waived the issue.
In view of our disposition of the issue res judicata, we need not address the claimant's contention that the ALJ erred as a matter of law in applying the principles of res judicata and her several related arguments.
The claimant finally contends that the ALJ erred as a matter of law in ruling that the respondents were entitled to collect any overpayment of benefits. ALJ Walsh ordered that "The respondents are entitled to collect any overpayments of benefits." Order at 11 ¶ 9. The claimant argues that her 1996 injury is not governed by the 1997 amendments to § 8-43-306, which permits recovery of overpayments. The respondents contend that this portion of ALJ Walsh's order is interlocutory and not subject to review, but also essentially confess that they are limited to recovering any overpayment from possible future benefits owed to the claimant.
We do not construe ALJ Walsh's "overpayment" language as constituting an order that the claimant repay any specific benefits, rather than recognizing an ability to claim to an offset against future benefits. In the circumstances presented here, particularly in light of the respondents judicial admission that they are limited to recover any overpayment from possible future benefits owed to the claimant, and that this portion of the order does not require a party to pay benefits or a penalty or denies the claimant any benefit or penalty, we need not consider the issue at this time. IT IS THEREFORE ORDERED that the ALJ's order dated November 16, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________ John D. Baird
__________________ Thomas Schrant
Colette Froeschle-Daniel, Grand Junction, CO, Garfield County School District RE-2 839, Whiteriver Ave Rifle, CO, Garfield County School District RE-2 c/o Employers Unity, Inc., CO, Pinnacol Assurance Harvey D. Flewelling, Esq., CO, Killian, Guthro Jensen, PC Amy K. Eaton-Fitzpatrick, Esq., CO, (For Claimant).
Ruegsegger, Simons, Smith Stern LLC David L. Smith, Esq., CO, (For Respondents).