Opinion
W.C. No. 4-326-355
June 17, 2004
ORDER OF REMAND
Respondents Merritt Equipment Company (Merritt) and its insurer Fireman's Fund Insurance Company (collectively Merritt respondents), seek review of an order of Administrative Law Judge Jones (ALJ) dated January 8, 2004. The Merritt respondents argue, inter alia, that the ALJ erred in applying the doctrines of res judicata and collateral estoppel when refusing to consider new medical evidence on the issue of causation. We set the order aside and remand for further proceedings.
This matter was before us previously to review an order of the ALJ dated July 10, 2002. Our order dated July 16, 2003, determined the July 10 order was interlocutory because, although the ALJ's order determined the Merritt respondents are liable to pay benefits, it did not determine the average weekly wage, and hence the amount of temporary disability benefits to be paid, nor did it award any specific medical benefits. As stated in our order, the "primary issue in the case is whether the claimant's neck condition, diagnosed as C6-7 syndrome with radiculopathy, is causally-related to an injury which the claimant sustained at Merritt on January 30, 1997, or to his subsequent employment with respondent D D Metal Products (D D) commencing in February 1998."
Pursuant to our order, the ALJ held a hearing on November 20, 2003, ostensibly to address the issues of average weekly wage and medical benefits. However, the Merritt respondents sought to introduce additional medical evidence concerning the cause of the claimant's neck condition. This medical evidence includes a report from Dr. Bainbridge, a physician who first evaluated and treated the claimant on January 23, 2003. In this report, which contains an extensive review of the claimant's verbal history and medical records, Dr. Bainbridge opines the claimant's cervical condition "is a result either of his employment at D and D or occurred at home."
However, in the January 8 order, the ALJ declined to consider the evidence, holding that the doctrines of res judicata and collateral estoppel preclude the respondents from again litigating the issue of causation decided in the July 10 order. Instead, the ALJ held the issues for consideration were limited to average weekly wage and medical benefits, and the ALJ ordered the Merritt respondents to pay these benefits. Otherwise, the ALJ incorporated the July 10 order in the January 8 order.
On review, the Merritt respondents contend the ALJ erred refusing to reconsider the causation issue in light of Dr. Bainbridge's January 23 report and the other medical evidence. The Merritt respondents argue that the doctrines of collateral estoppel and res judicata did not preclude the ALJ from reconsidering causation because the July 10 order was not a "final judgment." We agree with this argument.
The doctrine of res judicata, or claim preclusion, bars relitigation in a second action on the same claim of issues actually decided, or issues which could have been decided in the first action. Collateral estoppel, or issue preclusion, is broader because it applies to different claims for relief, but narrower because it applies only to issues actually litigated. However, application of either doctrine requires that there have been a "final judgment" resulting from the prior action. S.O.V. v. People, 914 P.2d 355, 358-359 (Colo.App. 1996).
In the workers' compensation context, orders are not final for purposes of review unless they dispose of an issue presented by awarding or denying some benefit or penalty. Section 8-43-301(2), C.R.S. 2003; Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo.App. 2003); Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). As we previously noted, the July 10 order did not award or deny benefits. Consequently, the July 10 order was interlocutorjy and afforded no basis for the application of the doctrines of res judicata and collateral estoppel.
Of course, an ALJ is not precluded from adhering to a prior interlocutory ruling or determination if the parties were afforded due process of law. Reliance on such a determination may be characterized as the "law of the case." However, application of this rule is discretionary, and an ALJ may elect not to follow the prior ruling if new facts, changes in the law, or other "persuasive circumstances" warrant modification of the prior ruling. Provo v. Industrial Claim Appeals Office, 66 P.3d 138, 142 (Colo.App. 2002), aff'd. in part, rev'd. in part on other issues, Dworkin, Chambers Williams v. Provo, 81 P.3d 1053 (Colo. 2003).
Moreover, the Act itself permits an ALJ to grant an extension of time to receive additional evidence after the apparent conclusion of proceedings. All that must be shown is that a party has good cause for the presentation of such evidence, and the ALJ may grant the request provided she acts before jurisdiction passes to this office. Section 8-43-207(1)(j), C.R.S. 2003 (ALJ may for good cause shown adjourn hearing to later date to receive additional evidence); Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430 (Colo.App. 2003); see also, section 8-43-301(5), C.R.S. 2003 (when ruling on petition for review ALJ may set the matter for additional hearing).
Consequently, the ALJ incorrectly ruled, based on res judicata and collateral estoppel, that she had no authority to receive and consider the new medical reports submitted by the Merritt respondents and, based on that evidence, to reconsider her July 10 decision on the issue of causation. Rather, the ALJ had discretion to consider the new evidence for good cause shown, and she has not yet exercised that discretion to determine whether the reports should be admitted and considered. Therefore, the matter must now be remanded for that purpose, and for any additional proceedings which may be appropriate based on the ALJ's determination. See Potomac Insurance Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987) (additional hearing warranted if evidence may be outcome determinative); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988).
In reaching this result, we recognize that determination of the issue of causation is usually one of fact for the ALJ. However, the weight to be assigned expert medical opinion is also a matter for the ALJ. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Consequently, we cannot say as a matter of law that the ALJ's failure to admit and consider the reports of Dr. Bainbridge is harmless as a matter of law. It is impossible to ascertain what weight the ALJ might assign such evidence if she determines it should be admitted, nor how the admission of such evidence might affect the ALJ's judgment of the credibility of other witnesses, including the claimant. In light of this ruling, we need not reach the Merritt respondents' remaining contentions.
IT IS THEREFORE ORDERED that the ALJ's order dated January 8, 2004, is set aside, and the matter is remanded for additional proceedings consistent with the views expressed herein. The ALJ may, in the exercise of her discretion, hold an additional evidentiary hearing if she determines such a hearing is necessary.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
Copies of this order were mailed to the parties at the addresses shown below on June 17, 2004 by A. Hurtado.
Douglas W. Younger, 6500 E. 88th Ave., #29, Henderson, CO 80640
Stan Rasmussen, Merritt Equipment Company, 9339 Highway 85, Henderson, CO 80640
D D Metal Products, 2305 W. Midway Blvd., Broomfield, CO 80020
Fireman's Fund Insurance Company, c/o Carilyn Dakan, Crawford Company, 9200 E. Panorama Cir., #160, Englewood, CO 80112
Commercial Casualty Insurance Company c/o Sierra Insurance Group, P. O. Box 6597, Englewood, CO 80155-6597
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
David J. Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents Merritt Equipment Company and Fireman's Fund Insurance Company)
John H. Sandberg, Esq., 3595 S. Teller St., #407, Lakewood, CO 80235 (For Respondents D D Metal Products and Sierra Insurance Group)