Opinion
W.C. No. 4-412-737
December 13, 2001
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined they failed to overcome the impairment rating of the Division-sponsored independent medical examination (DIME) physician by clear and convincing evidence, and the ALJ's oral ruling which denied them an opportunity to present evidence in support of their contention that the claimant's request for the DIME was not timely filed. Because we conclude the respondents were not afforded an opportunity to present their defense, we set the order aside and remand for further proceedings.
The claimant sustained a compensable injury on November 18, 1998, when her foot was run over by a tractor-trailer. After the claimant's treating podiatrist opined the claimant sustained no permanent impairment, the claimant underwent a DIME by Dr. Hall. Dr. Hall issued a 20 percent whole person medical impairment rating which included impairment for the claimant's lower extremity and low back.
The respondents sought a hearing seeking to overcome Dr. Hall's impairment rating, and alleged the claimant "waived" the issues of permanent partial disability and maximum medical improvement by failing timely to request the DIME. At the hearing on April 16, 2001, the ALJ refused to permit evidence concerning whether or not the claimant timely filed a request for the DIME. The ALJ ruled that a prior order, which he issued on December 15, 2000, constituted "law of the case" concerning whether or not the claimant filed a timely request. (Tr. p. 8).
On June 22, 2001, the ALJ entered the order currently under review. The ALJ found that Dr. Hall's impairment rating, including impairment assigned for the claimant's back condition, was not overcome by clear and convincing evidence. In so doing, the ALJ found that Dr. Hall's impairment rating was more persuasive than that of the treating physician.
On review, the respondents first contend the ALJ denied them due process of law by precluding them from presenting evidence concerning the date on which the claimant mailed the request for the DIME. The claimant argues the respondents were afforded a fair opportunity to litigate this issue at the hearing which formed the basis of the ALJ's December 2000 order, and the respondents did so. We agree with the respondents.
Section 8-42-107.5(2)(b), C.R.S. 2001, provides the findings of the authorized treating physician shall be binding on the parties unless the claimant, within 30 days after the date of mailing of the final admission, mails the "notice and proposal" for selection of a DIME. The statute further provides that "such notice and proposal is effective upon mailing."
The respondents alleged the claimant's notice and proposal for selection of a DIME contained no date of mailing, and was not timely mailed. The respondents were entitled to a hearing to establish the factual predicates for this defense unless the undisputed evidence presented to the ALJ revealed there was no legal basis for the defense. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). The apparent basis of the ALJ's refusal to conduct a hearing on the respondents' defense was his conclusion that, under the doctrine of law of the case, the December 2000 order previously determined that the claimant's attorney timely mailed the notice and proposal on July 2, 1999.
Law of the case is a discretionary rule of practice directing that prior relevant rulings made in the same case generally are to be followed. This legal doctrine applies to decisions of law rather than determinations of fact. Fortner v. Cousar, 992 P.2d 697 (Colo.App. 1999); DeForrest v. City of Cherry Hills Village, 990 P.2d 1139 (Colo.App. 1999).
The legal ruling contained in the ALJ's December 2000 order concerned whether or not the DIME performed by Dr. Hall constituted an agreed-upon DIME pursuant to § 8-42-107.5(3), C.R.S. 2001. The ALJ found there was an agreed-upon DIME, and, consequently, he ordered the respondents to file a final admission of liability based on Dr. Hall's rating, or file an application for hearing to contest the rating. The question presented to the ALJ at the hearing in April 2001, and decided in the order of June 2001, concerned the legal issue of whether the claimant timely requested the DIME in the first place. Therefore, the ALJ incorrectly applied law of the case because the legal ruling in the December 2000 order involved a separate legal issue from that which the ALJ was called upon to determine in the June 2001 order.
Perhaps the ALJ intended to apply the doctrine of collateral estoppel with respect to the December 2000 finding that the claimant's attorney requested the DIME on July 2, 1999. Collateral estoppel prohibits relitigation of legal or factual issues which were determined in prior litigation. M M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998). The December 2000 order states the claimant's application for a DIME was "dated July 2, 1999 which Mr. Gurley testified he completed after reaching the agreement with the adjuster." (Conclusion of Law 1).
However, collateral estoppel requires, among other things, that there be a final judgment on the merits in the prior proceeding. Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44 (Colo. 2001). Judgments based on preliminary grounds and not on the merits do not constitute final judgments for purposes of collateral estoppel. M M Management Co. v. Industrial Claim Appeals Office, supra.
Here, the December 2000 order did not constitute a final judgment on the merits. In fact, the order specifically states that it is "interlocutory and not subject to appeal" because it does not award or deny any benefits or penalties. See § 8-43-301 (2), C.R.S. 2001; Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999). Because the ALJ's findings of fact contained in the December 2000 order were not entered as part of a final judgment they could not be accorded collateral estoppel effect at the time the April 2001 hearing.
It follows the matter must be remanded to afford the respondents an opportunity to prove their defense concerning the claimant's alleged failure timely to request a DIME. Of course the claimant must be afforded an opportunity to confront the respondents' evidence and present whatever evidence she may wish to offer. In view of this determination, we need not reach the question of whether the ALJ correctly ruled the respondents failed to overcome Dr. Hall's impairment rating by clear and convincing evidence.
IT IS THEREFORE ORDERED that the ALJ's order dated June 22, 2001, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed December 13, 2001 to the following parties:
Erma J. Verdahl, 1041 Highway 65, Austin, CO 81410
Mark E. Hanson, Risk Manager, Nielson's, Inc., 22419 County Road G, Cortez, CO 81321
Nielson's, Inc., P. O. Box 1660, Cortez, CO 81321-1660
Liberty Mutual Fire Insurance, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Mary Anders, Liberty Mutual Fire Insurance, 2100 Walnut Hill Ln., #100, Irving, TX 75038
Richard T. Gurley, Esq., 851 Grand Ave., Grand Junction, CO 81501 (For Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy