Opinion
W.C. No. 4-559-615.
April 2, 2009.
ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated December 9, 2008, that granted the respondents' motion for summary judgment and denied the claimant's petition to reopen. We reverse and remand for further proceedings with respect to the claimant's petition to reopen.
Because this matter was resolved on summary judgment, no hearing was held. The ALJ's order recites that the claimant sustained a compensable injury on October 19, 2002, and was placed at maximum medical improvement on February 13, 2003. On March 31, 2003, the respondents filed a final admission of liability admitting for permanent partial disability benefits based upon an impairment rating of nine percent of the whole person. The claimant did not object to the final admission and the claim was closed. The claimant subsequently filed an application for hearing dated July 17, 2007, endorsing the issues of compensability, medical benefits, reopening, and permanent total disability. A hearing was held before Administrative Law Judge Friend, who concluded that the claimant had failed to carry his burden of showing a worsened condition. The ALJ here found that ALJ Friend had "noted" the existence of a medical report stating that the claimant's right hip avascular necrosis was not caused, aggravated, or accelerated by his compensable injury. The claimant then filed a subsequent petition to reopen on October 14, 2008, again seeking reopening of his claim based upon a worsened condition.
Based upon these facts the ALJ concluded that the doctrine of issue preclusion applied and precluded the claimant from relitigating the question of whether his condition had worsened. The ALJ found that the issues sought to be litigated in connection with the worsened condition in 2008 were "identical" to those the claimant presented at the hearing in 2007. Accordingly, the ALJ denied the petition to reopen and dismissed the matter.
The claimant appealed the ALJ's order and generally appears to contend that he was entitled to a hearing on the factual question whether his condition had worsened in 2008. We agree with the claimant's argument.
In general, except in rare circumstances, we doubt that the issues raised by successive petitions to reopen based on a worsened condition and filed over a year apart from one another can be said to be "identical." The mere passage of time itself changes the issues raised by the successive petitions, since each fact finder must focus on the claimant's allegedly worsened condition at a different point in time. Thus, in our view, issue preclusion will rarely be applicable in the context of reopening. Here, in any event, we conclude that the issues raised by the two petitions to reopen were not "identical."
The court of appeals has noted that issue preclusion refers to a court's final decision on an issue actually litigated and decided in a previous suit as being conclusive of that issue in a subsequent suit. See Estate of Scott v. Holt, 151 P.3d 642 (Colo.App. 2006) citing Rantz v. Kaufman, 109 P.3d 132 (Colo. 2005). Issue preclusion is an equitable doctrine that bars relitigation of an issue that has been finally decided by a court in a prior action. Bebo Construction Co. v. Mattox O'Brien, 990 P.2d 78, 84 (Colo. 1999). Its purpose is to relieve parties of the burden of multiple lawsuits, to conserve judicial resources, and to promote reliance upon and confidence in the judicial system by preventing inconsistent decisions. Id. Although issue preclusion was conceived as a judicial doctrine, it has been extended to administrative proceedings, where it "may bind parties to an administrative agency's findings of fact or conclusions of law." Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001). See also Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo.App. 2006). The supreme court has stated 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 proceedings; (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.
Sunny Acres Villa, Inc., 25 P.3d at 47.
We also note the very broad discretion afforded the Director and the ALJs in deciding whether to reopen a claim for the adjustment of benefits previously awarded. E.g., Wallace v. Industrial Commission, 629 P.2d 1091 (Colo.App. 1982) (reopening statute is purely permissive and vests broad discretion regarding whether to reopen); Renz v. Larimer County School District, W.C. No. 2-896-485 (July 12, 1995) (ALJ's authority to reopen is broad). In this respect reopening is sometimes permitted even when a previous order closing an issue was not appealed and was therefore permitted to become final. E.g., Martinez v. Durango 4-C Council, W.C. No. 3-101-724 (January 27, 1995). Moreover, we have previously rejected the application of the principle of res judicata to a case involving reopening, based upon the broad discretion afforded in the area of reopening. Hernandez v. Cattle King Beef Company, 3-714-045 (February 26, 1988) (noting that the ALJ had the discretion to reopen sua sponte in the absence of a petition to reopen.) Moreover, the reopening statute is informed by a legislative policy that favors a just result over the interest of the litigants in a final resolution of the claim. Padilla v. Industrial Commission, 696 P.2d 273 (Colo. 1985).
Here, as noted above, we disagree with the ALJ that the issue raised by the claimant's petition to reopen in 2007 was identical with that raised in the October 2008 petition to reopen. Little can be gleaned from ALJ Friend's summary order, except that he concluded that on November 15, 2007, the claimant failed to carry his burden of showing that his medical condition resulting from the compensable injury had worsened. Indeed, it is in the nature of a summary order that the ALJ is only required to set forth his order, either granting or denying the relief requested without more. Since the order was only a "summary" one, the ALJ was not required to enter factual findings unless requested by a party, which apparently did not occur in this case. Moreover, although ALJ Friend did recite in his summary order that Dr. Kawasaki "stated" that the claimant's avascular necrosis of the hip was not caused or aggravated by his compensable injury, the ALJ did not expressly credit that report, nor was he required to in a summary order. We cannot infer from ALJ Friend's summary order that the sole basis of the claimant's claim of worsening was his avascular necrosis, nor do we believe that the ALJ here could infer that of the later petition to reopen. In any event, the issue presented by the claimant's 2008 petition to reopen was the broad one whether his medical condition had worsened as of the time of the filing of that petition. That issue could not have been finally resolved by ALJ Friend's order and, in our view, the claimant was entitled to a hearing on the issue raised by his petition to reopen.
The ALJ's order granting summary judgment is reversed. Additionally, the portion of his order striking the claimant's application for hearing is set aside and the application for hearing is reinstated. On remand the matter shall be reset for hearing on the claimant's application. IT IS THEREFORE ORDERED that the ALJ's order dated December 9, 2008, is reversed and the matter is remanded for further proceedings consistent with the foregoing order.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun MICHAEL HANDSON, KANSAS CITY, MO, (Claimant).
NORTHWEST PIPE COMPANY, Attn: HR/PERSONNEL MANAGER, DENVER, CO, Employer).
PACIFIC EMPLOYERS INSURANCE COMPANY, C/O: CLAIM NO 780 C 2977700, TAMPA, FL, (Insurer).
CLIFTON, MUELLER BOVARNICK, PC, Attn: M. FRANCES MCCRACKEN, ESQ., DENVER, CO, (For Respondents).