Opinion
W.C. No. 4-545-460.
December 20, 2007.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge (ALJ) Walsh dated August 29, 2007, that denied and dismissed his petition to reopen and request for medical benefits. We set aside the order and remand this matter for further proceedings.
This matter proceeded to hearing on the claimant's petition to reopen due to an alleged worsening of his medical condition. The claimant also sought ongoing medical benefits after maximum medical improvement as provided in Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The ALJ's Findings of Fact, Conclusions of Law, and Order (Order) reflect the following findings. The claimant sustained an industrial injury to his right shoulder, neck, and left foot in June 2002. An MRI of the claimant's neck did not indicate a tear of his right rotator cuff. Dr. Steig placed the claimant at maximum medical improvement as of April 6, 2004. ALJ Stuber ordered the respondent insurer to pay for the claimant's reasonable and necessary medical treatment by authorized providers after maximum medical improvement. An MRI taken of the claimant on November 7, 2005, revealed a rotator cuff tear. However, Dr. Bergland opined that the tear was not related to the claimant's industrial injury. Dr. Bergland also opined that the claimant no longer needed medical care for his industrial injury.
ALJ Walsh conducted a hearing on May 9, 2006, to determine whether the claimant was entitled to treatment for his rotator cuff tear and related symptomology. He found that the rotator cuff tear was not related to the claimant's industrial injury and, also, that the claimant no longer required medical treatment to maintain maximum medical improvement. The claimant did not appeal the ALJ's decision.
The claimant was later examined by Dr. Rook, who opined that the claimant's work-related condition worsened. Dr. Rook cited the claimant's subjective complaints and the rotator cuff tear. The claimant sought to reopen his claim and seek medical maintenance benefits on the basis of Dr. Rook's report. However, the ALJ concluded that the claims for relief were identical to his claims determined at the hearing in May 2006. The ALJ therefore applied the doctrine of claim preclusion and denied and dismissed the claimant's petition to reopen and request for medical benefits.
The claimant asserts on appeal that his petition to reopen is based, at least in part, on changes in his condition beyond his rotator cuff tear. He therefore argues that the ALJ erred in dismissing his petition to reopen. He further argues that his entitlement to medical maintenance benefits was previously ordered and infers that he should be entitled to pursue such further benefits. We conclude that the ALJ erred in dismissing the claimant's petition to review and request for additional medical maintenance benefits on the basis of claim preclusion. We therefore set aside the ALJ's order and remand the matter for consideration of the claimant's petition to reopen and request for medical maintenance benefits.
Relitigation of a workers' compensation claim that has already been decided may be barred in order to prevent needless litigation and thereby promote judicial economy. Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795, 798 (Colo.App. 2006). In order to apply the doctrine of claim preclusion there must be (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 action. Id. In this case the claimant seeks to establish that his condition has worsened since the closure of his claim for benefits.
Section 8-43-303(1), C.R.S. 2007, provides that an award may be reopened on the ground of, inter alia, a change in condition. See Ward v. Ward, 928 P.2d 739 (Colo.App. 1996) (noting that change in condition has been construed to mean a change in the physical condition of an injured worker). Reopening is appropriate when the degree of permanent disability has changed, or when additional medical or temporary disability benefits are warranted. Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). Furthermore, the ALJ found that the claimant based his petition to reopen on Dr. Rook's report that the claimant's work-related condition had worsened in light of his subjective complaints and torn rotator cuff. Order at 3, ¶¶ 11-12. The claimant's petition to reopen his claim therefore is not identical to his earlier claim for compensation based on the alleged relatedness of his torn rotator cuff to his industrial injury.
We therefore conclude that the ALJ's prior determination that the claimant's torn rotator cuff is not causally related to his industrial injury is not dispositive of the claimant's petition to reopen. Moreover, the alleged worsening of the claimant's condition could not have been adjudicated at the prior hearing on the issue of whether the claimant's torn rotator cuff was related to his industrial injury. Cf. Holnam, Inc. v. Industrial Claim Appeals Office, supra (litigation of alleged cervical injury characterized as occupational disease barred by prior litigation of compensability of cervical condition). However, the ALJ's original findings as to the extent of the claimant's industrial injury have been conclusively litigated. See City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162, 1164 (Colo.App. 2002) (causation issue in reopened case limited to "whether there is a change in condition that can be causally connected to the original compensable injury").
The ALJ exercises considerable discretion in determining whether to reopen a claim. Wilson v. Jim Snyder Drilling, 747 P.2d 647 (Colo. 1987); Richards v. Industrial Claim Appeals Office 996 P.2d 756 (Colo.App. 2000). In this case, the ALJ erred by applying the doctrine of claim preclusion, rather than addressing the merits of the claimant's petition to reopen and request for additional medical benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated August 29, 2007 is set aside, and the matter is remanded for additional proceedings consistent with the views expressed herein. The ALJ may, in the exercise of his discretion, hold an additional evidentiary hearing if he determines that another hearing is necessary.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
JOSEPH C PELLETIER, COLO SPRINGS, CO, (Claimant).
AMERICAN PROTECTION INSURANCE CO, Attn: MYRA JELINEK, C/O: SPECIALTY RISK SERVICES, DALLAS, TX, (Insurer).
STEVEN U MULLENS PC, Attn: JAMES A MAY, ESQ., COLO SPRINGS, CO, (For Claimant).
WHITE AND STEELE. P.C., Attn: TED A KRUMREICH, ESQ., DENVER, CO, (For Respondents).