Opinion
W.C. No. 4-505-189.
December 3, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated July 27, 2009, that denied the claimant's request for a Scheker wrist replacement surgery. We affirm.
The claimant suffered an industrial injury to his left wrist on February 7, 2001. The claimant underwent numerous procedures to correct his wrist condition. In November 2007 the claimant experienced a "pop" in his wrist and Dr. Fry recommended a Scheker wrist replacement surgery. At the time of Dr. Fry's recommendation the claimant was also receiving pain management from Dr. Derrisaw who recommended a spinal cord stimulator to reduce the claimant's pain and improve function. A hearing was held on July 16, 2008 before ALJ Jones on the claimant's request for the Scheker wrist procedure and the spinal cord stimulator. In an order dated August 18, 2008 ALJ Jones found that the spinal cord stimulator constituted a reasonable, necessary and related medical benefit. However, the ALJ in the same order denied the claimant's request for the Scheker wrist procedure because it was not a reasonable and necessary medical benefit. Neither party appealed the order and it became final on August 31, 2008.
A hearing was held on June 17, 2009 before ALJ Cannici on the claimant's second request for the Scheker wrist replacement surgery. The claimant contended that the spinal cord stimulator had failed to reduce adequately his pain and that he would like to undergo the Scheker wrist procedure in order to reduce his pain and improve his function. ALJ Cannici determined that the issue presented before him was simply a renewed request for the Scheker wrist replacement. ALJ Cannici found that all four criteria for the doctrine of issue preclusion to be applied had been satisfied and that a second determination of whether the claimant was entitled to a Scheker wrist device would violate the purpose of issue preclusion. ALJ Cannici concluded that the claimant was barred from relitigating whether a Scheker wrist replacement constitutes a reasonable and necessary medical procedure. The claimant brings this appeal of ALJ Cannici's order.
The claimant contends that the ALJ erred in determining that his second request for medical benefits in the form of a Scheker wrist replacement was barred by the doctrine of issue preclusion. We disagree.
Issue preclusion and claim preclusion apply to administrative proceedings, including workers' compensation claims. Feeley v. Industrial Claim Appeals Office 195 P.3d 1154 (Colo. App. 2008). In Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001) the court determined that issue preclusion bars relitigation of an issue if:
(1) the issue sought to be precluded is identical to an issue actually determined in the prior proceeding;
(2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding;
(3) there is a final judgment on the merits in the prior proceeding; and
(4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.
It appears the claimant concedes that the parties are the same here as in the prior proceeding. Therefore, the only remaining disputed elements of issue preclusion are whether the identical issue of the reasonableness and necessity of the Scheker wrist procedure was determined in the prior proceeding, whether there was a final judgment on the merits and whether the claimant had a full and fair opportunity to litigate the issue of entitlement to the Scheker wrist procedure in the prior proceeding. In our opinion, all of the disputed elements of issue preclusion are present here.
I.
The claimant first argues that the issue addressed in ALJ Jones' order was not identical to the issue presented before ALJ Cannici. As we understand the claimant's argument, he contends that the issue involving the request for the Scheker wrist procedure was different in the second hearing because by the time of the second hearing he had undergone the spinal cord stimulator procedure that had failed and now the Scheker wrist procedure was the only option available.
For an issue to have been actually litigated, it must have been "submitted for determination and then actually determined by the adjudicatory body." Bebo Constr. Co. v. Mattox O'Obrien, 990 P. 2d 78. 85 (Colo. 1999). An issue "is necessarily adjudicated if it is essential to the judgment entered." Brownson-Rausin V. Indus. Claim Appeals Office, 131 P.3d 1172, 1176(Colo. App. 2005).
Here, the issue at the first hearing was the reasonableness and necessity of the Scheker wrist procedure. The respondents were required to furnish medical treatment as may reasonably be needed to cure and relieve the claimant from the effects of the injury. Section 8-42-101. C.R.S. 2009. The ALJ reached the conclusion that the respondents were not responsible for providing the Scheker wrist procedure based on her factual determination that the procedure was not a reasonable or necessary medical benefit. Therefore, the first ALJ denied the claimant's request for a Scheker wrist procedure. Exhibit M. At the second hearing the claimant argued that the Scheker wrist replacement surgery was reasonable and necessary to cure and relieve him of the effects of his industrial injury. See Statement of issues contained in claimant's post-hearing Position Statement. Thus, the issue of the reasonableness and necessity of the Scheker wrist replacement surgery was present at both hearings.
We agree with the ALJ Cannici that the claimant's current contention that the spinal cord stimulator failed to adequately reduce his pain does not nullify ALJ Jones' determination that he failed to establish that the Scheker wrist procedure was a reasonable and necessary medical procedure. We note that the provisions of § 8-43-303 C.R.S. 2009 allow for a reopening based upon change of condition, but it appears the claimant did not follow this procedure. Instead, the claimant chose to attempt to relitigate the issue of entitlement to the Scheker wrist procedure. Although it appears that medical benefits in general were not closed by ALJ Jones's order in our view the issue of the Scheker wrist procedures was closed by her order. See Esquibel v. Victorian Janitorial Services July 08, 1997, W. C. No. 4-188-325 (an "issue" properly closed may only be reopened pursuant to § 8-43-303).
II.
The claimant next argues that there was not a final judgment on the merits in the prior proceeding. The claimant again contends that he is not in the same physical status that he was in the prior proceeding because he has had implanted the spinal cord stimulator which failed. In our view, the determination of entitlement to the Scheker wrist procedure made in the order entered after the first hearing is final.
Here, the claimant failed to appeal the order entered by ALJ Jones finding that he had failed to establish that the Scheker wrist procedure was a reasonable and necessary medical procedure. An order not challenged by a petition to review is final. Stearns-Roger Mfg. Co. v. Casteel, 128 Colo. 289, 261 P.2d 228 (Colo. 1953); see also, State Compensation Ins. Fund v. Luna, 156 Colo. 106, 397 P.2d 231 (Colo. 1964) (the whole policy of the law is against the retrial of issues already litigated by the parties). It again appears that the claimant contends that because his condition has allegedly been made worse by the failure of the awarded spinal cord stimulator to reduce his long-standing pain, the order of ALJ Jones is not final. Although a determination may be subject to reopening for a change of condition it does alter the finality of the first order subject to reopening under § 8-43-303.
III.
The claimant next contends that he did not have a full and thorough opportunity to litigate the issue in the prior proceeding because he hoped that the spinal cord stimulator would eliminate the need for any further medical treatment. Therefore, there was not a full and thorough opportunity to litigate "only" the issue of the Scheker wrist procedure. We disagree.
The transcript of the hearing before ALJ Jones demonstrates that the claimant testified in his own behalf in seeking the Scheker wrist procedure. Tr. (7/16/2008) at 11-34. The clamant presented numerous exhibits in support of his claim. Tr. (7/16/2008) at 6. The claimant cross examined the medical expert presented by the respondent. Tr. (7/16/2008) at 82-114. We perceive no limitation on the claimant's right to a full and thorough opportunity to litigate the issue of his entitlement to the Scheker wrist procedure.
The claimant, citing Sunny Acres Villa, Inc., argues that he did not have the incentive to prosecute as vigorously the issue in the first hearing as he did in the second. We are persuaded that Sunny Acres is distinguishable.
In Sunny Acres the Supreme Court held that a causation finding reached after a hearing on temporary partial disability did not invoke the doctrine of collateral estoppel on the cause of the claimant's permanent total disability because the "difference in potential duration of benefits" between temporary partial disability and permanent total disability demonstrated that the insurer did not have the same incentive to litigate the causation issue at the hearing on temporary disability benefits. Sunny Acres Villa, Inc., 25 P.3d at 48. Thus, the court concluded that the doctrine of collateral estoppel did not bar relitigation of the causation issue at the hearing on permanent total disability benefits.
When we apply the principles established in Sunny Acres here we are compelled to conclude that the parties did have a "full and fair" opportunity to litigate the reasonableness and necessity of the Scheker wrist procedure before ALJ Jones. The issue before ALJ Jones was the need for and reasonableness of the Scheker wrist procedure.
The issue before ALJ Cannici was the same. The monetary liability for the Scheker wrist procedure was presumably the same or similar at both hearings. The determination of the liability for the medical procedure necessarily was based on a resolution of the reasonableness and necessity of the medical procedure at both hearings. Further, at the time of the first hearing, the claimant could not have known which, if any, of the two requested medical treatments the ALJ would grant. Therefore, the claimant had an incentive to prosecute vigorously the issue of his entitlement to the Scheker wrist procedure at the first hearing.
IT IS THEREFORE ORDERED that the ALJ's order dated July 27, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
Examiner Kriksciun dissents: In my view the ALJ erred in resolving this disputed issue by applying issue preclusion, and I would therefore not affirm the order. As the majority correctly states, issue preclusion bars relitigation of a matter already finally decided in a prior proceeding. Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001). The doctrine applies to both legal and factual issues. Carpenter v. Young, 773 P.2d 561, 564 (Colo. 1989). And the burden of showing that every element of issue preclusion is applicable is on the party seeking to invoke the doctrine. Goldsworthy v. American Family Mutual Insurance Co., 209 P.3d 1108 (Colo. App. 2008). Here, the legal issue at both proceedings was whether the respondents were liable for the recommended wrist surgery, and therefore that requirement was satisfied. However, in my view, the respondents were unable to carry their burden of showing that the factual issues before ALJ Jones and ALJ Cannici were identical.
To me it oversimplifies the matter to state that the factual issue in both cases was merely whether the requested surgery is reasonable and necessary. Rather, articulating the factual issue is more complex than that, and requires consideration of the factual assertions supporting the claim for benefits. Where the successive claims involve contentions that circumstances have changed or are in some respects different, then in my view the factual issues are not identical. This view mirrors the well-established principle that the broad discretion to reopen a claim reflects the legislative view that finality in workers' compensation must sometimes give way to considerations of fairness and justice. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo. App. 1996). Although there was no contention here that the issue of medical benefits was closed, I believe that a similar principle applies and that issue preclusion should be cautiously applied only where the factual issues are truly identical. Hence, it may well be that ALJ Jones viewed the factual issue in the prior proceeding as whether the surgery was reasonable and necessary, given the availability of a less expensive and less intrusive alternative treatment. Similarly, the factual issue in the present proceeding was the reasonableness and necessity of the procedure, given the failure of that alternative theory to provide relief. Of course, the respondents were necessarily hampered in their showing that the issues were identical, since ALJ Jones was not requested to enter findings of fact supporting her denial of the procedure. Nonetheless, the burden was on them to show the elements of issue preclusion. Because I do not believe they could carry that burden here, I would set aside the order and remand for further proceedings.
JEFFREY MCGEE, P O BOX 2802, LOVELAND, CO, (Claimant).
PASTERKAMP HEATING AND AIR CONDITIONING, DENVER, CO, (Employer).
MID-CENTURY INSURANCE COMPANY, Attn: TAMMY DEWALT, PHOENIX, AZ, (Insurer).
LAW OFFICE OF O'TOOLE SBARBARO, PC, Attn: JOHN A SBARBARO, ESQ., DENVER, CO, (For Claimant).
VARNELL ASSOCIATES, Attn: JOE ESPINOSA, ESQ., DENVER, CO, (For Respondents).