Cooper v. Industrial Claim Appeals Office, 98CA1343.

• Citation: 998 P.2d 5
• Decision Date: 28 October 1999
• Docket Number: No. 98CA1343.,98CA1343.
• Parties: Charla COOPER, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Sunny Acres Villa, Inc., Respondents.
• Court: Court of Appeals of Colorado

998 P.2d 5

Charla COOPER, Petitioner, v. The INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Sunny Acres Villa, Inc., Respondents.

No. 98CA1343.

Colorado Court of Appeals, Div. I.

October 28, 1999.¹

Certiorari Granted April 24, 2000.

Susan D. Phillips, Denver, Colorado, for Petitioner.

No Appearance for Respondent Industrial Claim Appeals Office.

Ritsema & Lyon, P.C., Susan K. Reeves, Colorado Springs, Colorado, for Respondent Sunny Acres Villa, Inc.

Opinion by Judge CASEBOLT.

Charla Cooper (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) denying her request for permanent total disability (PTD) benefits from Sunny Acres Villa, Inc. (employer). We set aside the order and remand for further proceedings.

While working for employer in 1992, claimant hit her head, hip, and extremities when she slipped and fell. When she reached maximum medical improvement (MMI) in June 1993, her authorized treating physician rated her impairment at 5% of the whole person. Her temporary disability benefits were then discontinued.

Claimant's condition subsequently worsened, prompting the first Administrative Law Judge (ALJ) assigned to this case to order the resumption of temporary disability benefits. The ALJ credited the opinions of a psychologist, psychiatrist, and audiologist that claimant's condition was work-related, and specifically discredited the contrary opinion of two other physicians, including one who had performed the first independent medical examination (IME). Based on this evidence, the ALJ concluded that claimant had suffered a closed head injury during the industrial accident, causing her to develop disabling psychological problems.

Claimant received temporary total disability (TTD) benefits until March 1996, when she reached MMI from the worsened condition. After she applied for a hearing on permanent total disability (PTD), a division-sponsored IME was performed. This second IME physician opined that claimant's psychological impairment was 60% of the whole person, but that such impairment was caused not by the industrial injury, but by preexisting conditions. Two other physicians agreed that the industrial injury was not a causative factor.

After a hearing on PTD, a second ALJ assigned to the case made findings in which he set forth the conflicting opinions of some ten medical providers. Some of those providers opined that claimant's condition was work-related, while others, including the second IME physician and the two concurring physicians, offered contrary opinions. The ALJ specifically credited only these latter three opinions, and implicitly rejected all the other opinions.

Based on the three opinions found persuasive, the ALJ denied the claim for PTD benefits because claimant had failed to prove that the industrial injury was a significant factor in the alleged disability. The Panel affirmed.

I.

Claimant contends that the first ALJ's order was conclusive as to the cause and compensable nature of her psychological disability, and that the second ALJ erred in redeciding issues the first ALJ had resolved. We agree.

A.

We first address the applicability of collateral estoppel to issues in a workers' compensation proceeding.

Collateral estoppel, or issue preclusion, is a derivative of res judicata. It bars relitigation of an issue if it is identical to an issue actually and necessarily adjudicated at a prior proceeding, the party against whom the estoppel is asserted was a party or is in privity with a party in the prior proceeding, there was a final judgment, and the party against whom the estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. M & M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App.1998).

Collateral estoppel is applicable only to later, independent proceedings; this doctrine generally does not apply to bar a party's later assertions in the same litigation. Normally, it is the law of the case, and not res judicata or collateral estoppel, that applies to progressive arguments made in the same action. In re Marriage of Mallon, 956 P.2d 642 (Colo.App.1998).

However, a workers' compensation case is peculiar in that different stages of such a proceeding will always be the same case, even when there is a reopening. Implicit recognition of this peculiarity has led divisions of this court to apply res judicata and collateral estoppel to issues resolved in the same case, including in workers' compensation proceedings. See M & M Management Co. v. Industrial Claim Appeals Office, supra; Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996); Williams v. Industrial Claim Appeals Office, 862 P.2d 1007 (Colo.App.1993). Indeed, courts in other states regularly apply res judicata and collateral estoppel in workers' compensation proceedings. See 8 Larson's Workers' Compensation Law § 79.72(b) (1998) (res judicata applies to workers' compensation proceedings such that prior decisions by a tribunal on earlier aspects of the same case are binding on it); Annotation, Matters Concluded in Action at Law to Recover for the Same Injury, By Decision or Finding Made in Workmen's Compensation Proceeding, 84 A.L.R.2d 1036 (1962).

Accordingly, we conclude that principles of collateral estoppel are applicable here.

We further conclude that, although claimant raises the issue under the doctrine of law of the case, which does not apply, we will consider the substance of her argument under principles of collateral estoppel. See In Re Marriage of Mallon, supra (although husband urged error on basis of res judicata, which doctrine did not apply, court considered substance of argument under different framework).

B.

Whether a finding of causation in an order granting TTD benefits can be retracted in a later order on permanent disability benefits is an issue of first impression. We conclude that, once a finding of causation is made in a final order, that finding is binding, absent fraud or some other factor invalidating the prior order. See § 8-43-303, C.R.S.1999; Bath Iron Works Corp. v. Director, 125 F.3d 18 (1st Cir.1997) (reopening is a limitation on res judicata).

The great majority of courts which have considered similar issues have concluded that, once a determination of causation is made at one stage of a workers' compensation proceeding, collateral estoppel bars relitigation of the issue in later proceedings in the same case. See Smith v. Industrial Commission, 125 Ill.App.3d 999, 81 Ill.Dec. 199, 466 N.E.2d 1001 (1984) (temporary disability award was conclusive as to issue of causation); Van Houten v. Harco Construction, Inc., 655 A.2d 331 (Me.1995) (where, in first proceeding, court determined that injury was work-related, employer was collaterally estopped from denying such work-relatedness in second proceeding for medical benefits); Fox-Smythe Transportation Co. v. McCartney, 510 P.2d 686 (Okla.1973) (since determination was made at TTD stage that injury caused disability, causation issue could not be relitigated at PTD stage in same case); Johnsen v. Beacon Electric, 117 Or.App. 285, 843 P.2d 1008 (1992) (claim is barred by issue preclusion if exposure to asbestos and conditions are same as those considered in earlier claim); Ricci v. Hall, 101 R.I. 677, 226 A.2d 692 (1967) (in first proceeding employee was determined to be totally incapacitated from industrial accident; thus, in subsequent proceeding for benefits from second injury indemnity fund, res judicata barred relitigation of causation); AMP, Inc. v. Ruebush, 10 Va.App. 270, 391 S.E.2d 879 (1990) (agency's final judgment on issue of causation conclusively resolves claim as to that particular injury, and, absent fraud or mistake, res judicata bars further litigation of that claim); cf. Tenorio v. State ex rel. Wyoming Workers' Compensation Division, 931 P.2d 234 (Wyo.1997) (absent statute modifying applicability and scope of collateral estoppel in cases where the initial award is uncontested, doctrine would have applied at second proceeding for permanent disability benefits to bar relitigation of causation issue, which was resolved in first proceeding for TTD and medical benefits).

Thus, collateral estoppel applies whether it is the worker or the employer who seeks to relitigate administratively the issue of causation. See 8 Larson's Workers' Compensation Law, supra, § 81.32(a) (no matter who brings a change-of-condition reopening proceeding, neither party can raise original issues such as work-connection, employee or employer status, occurrence of a compensable accident, and degree of disability decided at the time of the first award).

As the court observed in Bath Iron Works Corp. v. Director, supra, 125 F.3d at 22:

[T]he point of collateral

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