Opinion
W. C. No. 3-062-456.
September 24, 2007.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Martinez (ALJ) dated July 2, 2007 that allowed the respondents to apply a lump sum offset to all benefit payments made. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant sustained a work injury in 1989 and was later awarded permanent total disability (PTD) benefits. The order awarding PTD benefits provided for a social security disability insurance offset. In 1992 the Director of the Division of Workers' Compensation (Director) awarded the claimant a lump sum. The Director's lump sum order provided for a $14.96 weekly reduction in PTD benefits from the insurer to the claimant as a result of the claimant's receiving the lump sum. After the lump sum order was entered various admissions and orders were entered. On November 6, 2006 the respondents filed an amended final admission which, among other things, referred to the lump sum order and reduced the weekly rate of benefits by $14.96. The claimant then filed an application for hearing alleging the respondents could not amend their earlier final admissions to take the lump sum offset without first reopening the claim. The respondents did not agree. The claimant's counsel wrote a letter offering that if the respondents filed a petition to reopen, the claimant would not object to the petition to reopen. The respondents filed an unopposed motion to reopen on January 30, 2007 stating that the final admission of liability they filed on December 29, 2005 inadvertently did not reflect the weekly reduction in benefits of $14.96 as ordered by the Director in the lump sum order. The respondents sought to file a final admission dated January 3, 2007 to reflect the lump sum offset. The motion to reopen was approved by an order of the Director on February 15, 2007. The present matter was heard by the ALJ on the issue of the period of time for which the respondents were to be allowed to reduce the PTD benefits pursuant to the Lump Sum Order. The parties, prior to the hearing, agreed that there were no disputed issues of material fact and submitted the case on a question of law.
The claimant contended that the respondents were not entitled to assert the lump sum offset for the period of time covered by admissions that did not provide for the lump sum offset. The claimant also contended that the respondents were not entitled to any lump sum offset after they had entered into a stipulation regarding an offset for social security disability benefits. The claimant argued that the stipulation was approved by an order, which made no provision for a lump sum offset.
The ALJ determined that the admissions and the subsequent orders, which did not mention the lump sum order, did not serve to preclude the enforcement of the order. Therefore, the ALJ concluded that the doctrines of res judicata and law of the case did not bar the respondents taking the lump sum offset. The ALJ determined the lump sum offset ordered by the Director adjusted the amount of the benefits accurately to reflect the correct amount of benefits the claimant was owed.
The ALJ further found that the claimant's application for hearing did not include the issue of waiver. Instead the claimant asserted in his application that the respondents could not take offsets mandated either by statute or by order if they were not previously included in an admission. The ALJ determined that the issue of waiver must be affirmatively pleaded and since the claimant had not endorsed it as an issue he could not rely on it at the hearing. The ALJ also determined that even if the claimant could rely on the doctrine of waiver the respondents had not intentionally relinquished a known right with full knowledge of all the relevant facts. Therefore, the respondents had not knowingly waived their right to pursue the offset.
The ALJ ordered that the respondents could apply the lump sum offset to all payments made since the date of the Director's lump sum order and could continue applying the lump sum offset in the future until the right to take the offset was ended pursuant to law. The claimant appealed. The claimant has not filed a brief in support of his petition to review of the ALJ's supplemental order and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
I.
The claimant's first specific argument is that the ALJ erred as a matter of law in failing to apply the principles of res judicata and law of the case. The claimant argues that the parties had entered into a stipulation regarding the social security offset, in which the lump sum offset was not mentioned. This stipulation was approved by order dated June 29, 2006. The claimant contends the ALJ erred in failing to rule that respondents were restricted to taking an overpayment amount relating to social security payments and not the lump sum offset. The claimant contends the June 29, 2006 order had already ruled on the issue of the lump sum offset and the parties were bound by that order. The claimant argues that the doctrines of res judicata and law of the case prohibit the respondents from taking the lump sum offset.
In our opinion the claimant's reliance on the doctrines of res judicata and law of the case are misplaced. For the doctrine of res judicata to apply it must be demonstrated there was identity of subject matter, identity of claim, and identity of parties to the action between the first and second hearings. Mid-Continent Resources, Inc. v. Looby, 877 P.2d 1385 (Colo.App. 1994); Perez v. Storage Technology Corporation, W.C. No. 4-255-751 (February 12, 1999). The "law of the case" doctrine is a discretionary rule which provides that prior relevant rulings made in the same case are generally to be followed. Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982).
Here, as the ALJ noted, neither the June 29, 2006 order nor the June 27, 2006 stipulation mentioned the offset allowed for by the Director in his lump sum order. Exhibit 8. There was no identity of subject matter between the social security offset dealt with in the June 29, 2006 order and the lump sum offset provided by the Director's order. Therefore the doctrine of res judicata does not apply.
The June 29, 2006 order did not even involve the offset allowed by the Director and is not relevant to the issue of the lump sum offset. Therefore, the "law of the case" doctrine does not apply here. We agree with the ALJ that the doctrines of res judicata and "law of the case" do not bar the lump sum offset.
II.
The claimant next argues that the respondents failed to assert a lump sum offset in admissions filed early in the case, such as the final admission of liability filed on January 24, 2003. The claimant contends the respondents are bound by their earlier admissions and cannot withdraw those admissions. The claimant argues the respondents should not now be allowed to re-assert their entitlement to a lump sum offset in their later final admissions of liability dated November 6, 2006 and January 3, 2007. We disagree.
As we read the ALJ's order he awarded an offset against future benefits and the order is not equivalent to permitting the respondents to withdraw admissions of liability. As the courts of Colorado have recognized, an offset serves to equitably adjust benefits without requiring the claimant to repay the benefits out of pocket. Jiminez v. Industrial Claim Appeals Office, 51 P.3d 1090 (Colo.App. 2002); Whiteman v. Life Care Solutions W. C. No. 4-523-153 (October 29, 2004); Martinez v. Denver Health Medical Center, W.C. No. 4-527-415 (July 7, 2004). In Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988), the supreme court rejected the argument that a retroactive application of an offset was equivalent to a retroactive withdrawal or revocation of an insurer's admission. The court explained that an offset, when taken retroactively, merely adjusts the amount of benefits to accurately reflect the amount to which a claimant is actually entitled. The court noted that an offset does not abrogate the insurer's admission of liability or otherwise cause a discontinuation in benefits. We are not persuaded by the claimant's attempts here to distinguish Johnson and Jiminez. In our opinion the arguments made by the claimant are arguments that the courts rejected in Johnson and Jiminez.
III.
The claimant finally contends the respondents waived their right to assert any overpayment. An offset is in the nature of an affirmative defense to a claim for workers' compensation disability benefits. Johnson v. Industrial Commission, supra. The respondents therefore, had the burden of demonstrating its right to an offset. The ALJ found the respondents carried that burden and the claimant does not challenge that finding. Once a prima facie case was established on the issue of offset, the burden shifted to the claimant to prove by a preponderance of evidence that he was entitled to relief from the claimed offset on the basis of an estoppel or waiver. Id. Here, the ALJ found that the respondents did not knowingly waive their right to pursue the offset, which was ordered by the Director's lump sum order.
Generally, the question of whether a party waived a right is one of fact for determination by the ALJ. Wielgosz v. Denver Post W. C. No. 4-285-153 (December 3, 1998). Consequently, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, an ALJ is not held to a standard of absolute clarity in expressing findings, so long as the ALJ makes findings concerning that evidence which he found to be determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The ALJ determined that the claimant failed timely to raise the waiver argument. Waiver must be timely raised or the issue of waiver is itself waived. See Lewis v. Scientific Supply Co., Inc, 897 P.2d 909 (Colo.App. 1995). The ALJ noted that the claimant's application for hearing did not list the issues of waiver or laches. We are unable to find the relevant application for hearing in the record sent to us. However, the claimant does not appear to contest the finding that the issue of waiver was not listed in his application for hearing.
In any event the record supports the ALJ's finding that the claimant failed to prove by a preponderance of evidence that the respondents, by their conduct, waived the right to pursue the offset claim. No testimony was taken at the hearing. Rather, exhibits were filed. The claimant argues that the circumstance of the insurer's filing admissions and entering into a stipulation without mention of the lump sum offset is evidence of waiver. In our opinion this evidence does not compel the conclusion that the respondents intentionally relinquished a known right with full knowledge of all the relevant facts. This evidence might support a contrary result but it does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding). We find no error in the ALJ's determination that the claimant could not rely on the issue of waiver.
IT IS THEREFORE ORDERED that the ALJ's order dated July 2, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
ANDY QUINTANA, 3307 S. HIGHLAND DRIVE, CLIFTON, CO, 81520 (Claimant)
SUNDSTRAND AVIATION OPS, Attn: PMB 216, 2830 NORTH AVE, SUITE C5B, GRAND JUNCTION, CO, 81501-5367 (Employer).
LIBERTY MUTUAL GROUP, Attn: MARY ANDERS, P.O. BOX 268208, IRVING, TX, 45076-8208 (Insurer).
KILLIAN, GUTHRO JENSEN P.C., Attn: AMY K. EATON-FITZPATRICK, 225 NORTH 5TH ST STE 1010, GRAND JUNCTION, CO, 81502 (For Claimant).
LAW OFFICES OF RICHARD P. MYERS, Attn: DAVID KROLL, 1120 LINCOLN ST STE 1606, DENVER, CO, 80203 (For Respondents).