Opinion
W.C. No. 4-554-986.
October 10, 2003.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ) which denied and dismissed the claim for workers' compensation benefits. The claimant contends the respondents are judicially estopped from denying the claim. Alternatively, the claimant contends the ALJ erred in determining that the claimant failed to prove that he sustained a compensable injury arising out of and in the course of the employment. We affirm.
The claimant suffers from hepatitis C and related liver disease. It is undisputed that these conditions were not caused by the claimant's employment as a laundry aide for the respondent-employer (IHS).
However, the claimant alleged that IHS mishandled his October 1999 request to change health insurance providers from Pacific Care to Kaiser. The claimant contended that as a result of the employer's actions both Pacific Care and Kaiser refused to cover a liver transplant evaluation which he underwent in October 2000. The claimant further contended that the employer's mishandling of the change request led to a deterioration of the preexisting liver condition.
The ALJ found the claimant failed to prove that he sustained any "injury" which is compensable under the Workers' Compensation Act (Act). In support, the ALJ credited the testimony of Dr. Iwata that, when he examined the claimant in 2001, the claimant's liver condition was "well compensated" and he was unable to say there had been any deterioration in the claimant's condition. Thus, the ALJ determined the claimant failed to prove the employer's alleged mishandling of the health insurance caused any "deterioration" of the preexisting liver disease. Further, the ALJ concluded that insofar as the claimant was seeking compensation for the liver transplant evaluation based on the employer's misconduct, the claimant "does not have a claim for workers' compensation benefits." In any event, the ALJ concluded there was an insufficient "nexus" between the employer's handling of optional group health insurance and the claimant's job functions such that the alleged "injuries" arose out of and in the course of the claimant's employment.
I.
On review, the claimant contends the ALJ erred in concluding that the employer's provision of health insurance and its handling of the claimant's request for a change of insurers did not arise out of and in the course of the employment. The claimant relies on cases holding that in some circumstances injuries may arise out of and in the course of employment if they are sustained while the claimant is performing an activity found to be incident to the employment, although the activity was not a strict duty of the employment. We do not reach this argument because we hold the record supports the ALJ's conclusion that the claimant did not prove the existence of a compensable "injury."
Sections 8-41-301(1) and (1)(c), C.R.S. 2002, provide that the right to compensation under the Act is "in lieu of any other liability to any person for any personal injury or death resulting therefrom," and dependent on proof the injury or death was "proximately caused by an injury or occupational disease arising out of and in the course of the employee's employment." (Emphasis added). An "injury" contemplates "disability or death resulting from accident or occupational disease." Section 8-40-201(2), C.R.S. 2002. Further, the Act compensates two distinct losses caused by an industrial injury; "the loss of earning capacity based on the concept of disability, and medical or other costs associated with the injury." Wal-Mart Stores, Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). However, the Act does not compensate various economic losses having some connection to the employment relationship but not associated with a "personal injury" to the claimant. Serna v. Kingston Enterprises, 72 P.3d 376 (Colo.App. 2002) (exclusivity provisions of Act did not bar injured employee's suit against employer for indemnity based on injuries which the employee caused to others).
Thus, under the statutory scheme disability and medical benefits do not flow simply because of an event occurring in or about the workplace. Rather, the Act requires a physical or mental "injury" to the claimant's person which is associated with the performance of work. Hence, in City of Littleton v. Schum, 38 Colo. App. 122, 553 P.2d 399 (1976), the court held the claimant, who had been exposed to hepatitis in the workplace, was not entitled to compensation for precautionary gamma globulin injections. The court reasoned the claimant suffered no "injury" because there was no disablement, and because the claimant had not actually proven the existence of any disease. The court held the Act does not compensate for "preventative measures."
Thus, we agree with the ALJ that the claimant did not allege a compensable "injury" for purposes of the Act to the extent the claim is based on the contention that the employer's fraud deprived him of insurance to pay the cost of the transplant evaluation. The claimant concedes the need for the transplant evaluation in October 2000 was totally unrelated to any on-the-job injury. Insofar as employer negligence or misconduct resulted in the denial of insurance coverage for the transplant evaluation, the resulting damage to the claimant was purely economic and not produced by the type of physical or mental "injury" to the claimant's person which is cognizable under the Act.
The claimant also alleges that the employer's alleged mishandling of the insurance change caused him to experience a deterioration in his health resulting in a compensable injury. It is true that an otherwise compensable injury which aggravates or accelerates a preexisting condition results in a compensable injury. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). However, the claimant must prove that the alleged industrial injury was a proximate cause of the aggravation or acceleration. Section 8-41-301(1)(c).
The question of whether the claimant proved causation is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Thus, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra. In this regard, we note the weight and credibility to be assigned expert medical opinion is a matter within the province of the ALJ as fact-finder. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant's assertion notwithstanding, the record contains ample evidence to support the ALJ's conclusion that the employer's alleged actions involving the processing of the health insurance did not cause any aggravation or acceleration of the claimant's preexisting liver condition. To the contrary, the testimony of Dr. Iwata, which the ALJ expressly found to be the most probative, indicates the claimant's liver condition was stable and not deteriorating in 2001. The fact that some evidence in the record might support a contrary finding affords no basis for relief on appeal. Pacesetter Corp. v. Collett, 33 P.3d 1230, 1234 (Colo.App. 2001).
Because we conclude the evidence supports the ALJ's determination that the claimant has not proven any cognizable "injury" occurred, we need not reach the claimant's argument that the ALJ erred in concluding that the employer's handling of the request for a change of insurance carriers did not arise out of and in the course of the claimant's employment.
II.
The claimant next contends that the respondents are judicially estopped from arguing that the claimant did not sustain a compensable injury arising out of and in the course of employment. In this regard, the record reveals the claimant filed a lawsuit in federal court against various parties, including IHS, alleging that the processing of the claimant's request for a change in health insurance providers amounted to fraud. IHS and its fellow defendants moved to dismiss this claim alleging that the exclusivity provisions of the Act prohibit the claim for fraud. Subsequently, the claimant filed an amended complaint, and the United States District Judge denied the motion to dismiss as moot.
The claimant contends that because IHS argued in federal court that the exclusivity provisions of the Act preclude the fraud complaint, the respondents are estopped from denying in the workers' compensation case that the claimant sustained an injury arising out of and in the course of employment. The ALJ rejected this contention because he concluded the workers' compensation insurer (Pacific Employers) was not a party to nor was it in privity with a party to the federal case. Further, the ALJ ruled that IHS was not "successful" in advancing the exclusive remedy argument in the federal court and gained no benefit from the argument.
We find no error in the ALJ's ruling that the respondents are not judicially estopped from denying the compensability of the claim. The following language from Estate of Burford v. Burford, 935 P.2d 943, 948 (Colo. 1997), sets forth the elements of judicial estoppel.
To summarize, while the doctrine of judicial estoppel eludes precise definition, we hold that, at a minimum, the following five circumstances are required for the doctrine to apply: first, the two positions must be taken by the same party or parties in privity with each other; second, the positions must be taken in the same or related proceedings involving the same parties or parties in privity with each other; third, the party taking the positions must have been successful in maintaining the first position and must have received some benefit in the first proceeding; fourth the inconsistency must be part of an intentional effort to mislead the court; and fifth, the two positions must be totally inconsistent — that is, the truth of one position must necessarily preclude the truth of the other.
Privity requires that there be a "substantial identity of interests between a party and a non-party such that the non-party is virtually represented in the litigation." People in Interest of M.C., 895 P.2d 1098, 1100 (Colo.App. 1984), aff'd. S.O.V. v. People in Interest of M.C., 914 P.2d 355 (Colo. 1996). Thus, privity recognizes a relationship in which the non-party's interests are presented and protected in the initial litigation. S.O.V. v. People in Interest of M.C., 914 P.2d at 360.
We agree with the ALJ that Pacific Employers was not in privity with IHS in the civil suit. Pacific Employers, as the workers' compensation insurer for IHS, is directly and primarily liable for any workers' compensation benefits which IHS may owe to the claimant. Section 8-44-105, C.R.S. 2002; Tri-State Insurance Co. v. Industrial Commission, 151 Colo. 494, 379 P.2d 388 (1963). Thus, as the ALJ recognized, IHS may desire to deflect potential liability in the civil suit to the workers' compensation claim where its liability is insured by Pacific Employers. Under this scenario IHS certainly had no incentive in the civil case to advance Pacific Employer's views concerning the scope injuries covered by the Act.
We also agree with the ALJ that IHS was not "successful" in the civil case when it argued that workers' compensation provides the exclusive remedy. "Success," as the term is used in judicial estoppel cases, contemplates that in the earlier proceeding the court adopted the position of the party against whom estoppel is asserted. Otherwise, the integrity of the process is not impugned when the party takes a contrary position in the later proceeding. Estate of Burford v. Burford, 935 P.2d at 948.
Here, the United States District Court did not adopt or even rule on the question of whether the Act provides the exclusive remedy for the injuries alleged by the claimant. Rather, the judge ruled the issue was moot because the claimant amended the complaint in the civil case. Thus, IHS was not "successful" in its argument to the District Court.
IT IS THEREFORE ORDERED that the ALJ's order dated March 26, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on October 10, 2003 by A. Hurtado.
Cipriano Zapata, 1225 Pando Ave., Colorado Springs, CO 80906
Pacific Employers Insurance Company, P.O. Box 2941, Greenwood Village, CO 80150
Sherri L. Sweers, Esq., 1866 Vine St., Denver, CO 80220 (For Claimant)
Royce W. Mueller, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)