Sullivan v. ICAO

OK20CA2063 Sullivan v ICAO 10-21-2021 COLORADO COURT OF APPEALS Court of Appeals No. 20CA2063 Industrial Claim Appeals Office of the State of Colorado WC No. 5-072-843 James Sullivan, Petitioner, v. Industrial Claim Appeals Office of the State of Colorado, CPC Logistics, and ACE American Insurance, Respondents. ORDER AFFIRMED Division IV Opinion by JUDGE FREYRE J. Jones and Tow, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 21, 2021 Mark A. Simon, Denver, Colorado, for Petitioner No Appearance for Respondent Industrial Claim Appeals Office Pollart Miller LLC, Brad J. Miller, Greenwood Village, Colorado, for Respondents CPC Logistics and ACE American Insurance 1 ¶ 1 In this workers’ compensation acti on, claimant, James Sullivan, seeks review of a final ord er of the Industrial Claim Appeals Office (Panel), which affir med the decision of an administrative law judge (ALJ). The ALJ denied Sullivan’s requests (1) for temporary total disability (T TD) benefits from October 4, 2019, through October 23, 2019; a nd (2) to impose penalties against employer, CPC Logistics (C PC), and insurer, ACE American Insurance (collectively respondents ), for their failure to pay those benefits. We affirm the Panel’s ord er. I. Background ¶ 2 Sullivan worked as a truck driver fo r CPC. On March 18, 2018, Sullivan was putting fuel in to his work truck when he slipped and fell backward onto a concr ete barrier (the work accident). Lat er that day, Sullivan drove himself t o the emergency room where he was diagnosed with three fractur ed ribs on his left side. ¶ 3 The following day, Sullivan went t o see Dr. Charles Wenzel. Sullivan reported left-sided rib pain , right-sided trapezial pain, and left leg pain. Dr. Wenzel referred S ullivan to Dr. Gretchen Brunworth for pain management. 2 ¶ 4 On March 20, 2018, Sullivan went to see Dr. Brunworth. Sullivan reported stiffness and disc omfort in his right neck and shoulder region, tingling and disco mfort down his right arm into h is forearm, and left-sided rib pain. ¶ 5 Sullivan continued to see Dr. Brun worth through May 2018. As time went on, Sullivan reported low er back pain and pain in his left leg. On May 29, 2018, Sulliva n reported that his rib pain had dissipated. So Dr. Brunworth disc harged him from treatment, stating, “If Dr. Wenzel deems that the low back condition is related to his injury and he needs som e assistance with evaluating and treating that condition, I am happy to see him back.” ¶ 6 On July 30, 2018, Dr. Wenzel tr ansferred Sullivan’s pain management care to Dr. Roberta A nderson-Oeser. When Sullivan first saw Dr. Anderson-Oeser in July 2018, he reported that he had “immediate cervical and low back p ain and left leg pain and paresthesias” at the time of the in jury. ¶ 7 About a month later, Sullivan tol d Dr. Anderson-Oeser that he wanted to return to full-duty work without restrictions because h e was bored being at home. Based on his request, Dr. Anderson- Oeser released Sullivan to full-dut y work. 3 ¶ 8 Respondents had been paying Sulli van TTD benefits. After Sullivan returned to full-duty work , respondents filed a General Admission of Liability (GAL), termin ating those benefits. The GAL admitted medical benefits and TTD benefits from March 19, 2018, through April 15, 2018, and Jun e 11, 2018, through August 27, 2018. ¶ 9 On September 19, 2018, Sullivan u nderwent a respondents’ independent medical examination (IME) with Dr. Allison Fall. Dr. Fall opined that  the work accident resulted in thr ee left-sided rib fractures and a temporary aggravat ion of Sullivan’s cervical myofascial pain, both of which had dissipated;  Sullivan had pre-existing chronic lower back and leg pain for which he had taken opioid medi cation; and  Sullivan reached maximum medica l improvement (MMI) on May 29, 2018, with no perman ent impairment or work restrictions related to the work ac cident after that time. ¶ 10 On February 13, 2019, Dr. Brunw orth conducted a medical records review and agreed with Dr. Fall’s conclusions. She opin ed that there was no evidence that Su llivan sustained a lower back 4 injury from the work accident and agreed that Sullivan reached MMI on May 29, 2018, with no p ermanent impairment or work restrictions. ¶ 11 Based on Dr. Brunworth’s report , respondents filed a Final Admission of Liability (FAL). R espondents stated that Sullivan (1) reached MMI on May 29, 2018; (2) had no permanent impairment; and (3) was not entitled to maint enance care after he reached MM I. ¶ 12 Sullivan challenged the validity of the FAL. After an evidentiary hearing, ALJ Edwin F elter concluded that the FAL was invalid because Dr. Brunworth w as not an authorized treating physician (ATP) when she determin ed that Sullivan was at MMI. ¶ 13 In the meantime, Sullivan continue d to be treated by Dr. Anderson-Oeser to alleviate the pai n in his lower back and lower l eft extremity. On October 3, 2019, Su llivan told Dr. Anderson-Oeser that his pain, numbness, tingling, and weakness were increasing with sitting and driving. Along w ith her treatment recommendations, Dr. Anderson-O eser gave Sullivan work restrictions that included “no com mercial driving or loading/unloading trucks.” Thos e work restrictions continued until 5 October 23, 2019, when Dr. Ander son-Oeser placed Sullivan on modified work duty. ¶ 14 Respondents refused to pay Sulliva n TTD benefits from October 4, 2019, through October 23, 2019. So Sullivan filed an application for hearing, requesting (1) TTD benefits for that time period; and (2) penalties based on r espondents’ failure to pay them. ¶ 15 After an evidentiary hearing, ALJ P eter Cannici concluded that Sullivan and failed to demonstrat e by a preponderance of the evidence that he was entitled to TT D benefits from October 4, 2019, through October 23, 2019. In reac hing that conclusion, ALJ Cannici made the following finding s of fact:  Sullivan had a pre-existing lumbar spine condition that required continuing treatment, as evidenced by a 2015 MRI. Medical records from October 2017 showed that Sullivan reported lower back pain a nd had obtained medication to treat his symptoms.  The medical records and reports of Dr. Fall and Dr. Brunworth showed that Sullivan’s work injury was limited to three rib fractures and a temporary aggravation of his cervical myofascial pain that had dissipated. 6 Sullivan did not suffer any injury to h is lower back based on the work accident.  The opinions of Dr. Fall and Dr. Brun worth were persuasive.  The work restrictions from Octob er 4, 2019, through October 23, 2019, were based on S ullivan’s pre-existing, non-work-related lower back con dition and were not caused by the work accident. At that time, his rib fractures and the temporary aggra vation of his cervical myofascial pain had dissipated. ¶ 16 ALJ Cannici also concluded that respondents’ decision to dispute TTD benefits after Sullivan had been working without restrictions for thirteen months w as not a basis for penalties. H e found that respondents properly t erminated TTD benefits when Sullivan returned to work in Augus t 2018 and had no legal duty to admit to TTD benefits until Sulliva n established the existence of a disability, which he had failed to d o. ¶ 17 Sullivan filed a petition for review o f ALJ Cannici’s order, arguing that (1) he was not given n otice and an opportunity to be heard on the issue of whether his l ower back condition was 7 compensable; (2) respondents pr eviously admitted that his back injury was compensable; and (3) th e doctrines of res judicata, collateral estoppel, and the law of the case precluded ALJ Cannici from determining the issue of wh ether his back condition was compensable because ALJ Felter’s prior order had already determined that issue. ¶ 18 On review, the Panel affirmed ALJ Cannici’s order, making the following conclusions:  There was no basis to disturb ALJ Cannici’s determination that Sullivan’s work restrictions from October 4, 2019, through October 23, 2019, were unrelated to the work accident b ecause it was supported by the opinions of Dr. Fall and Dr. Brunworth and other medical evidence in the record.  The issue was not compensability but the nature and extent of the injury since respond ents had admitted that Sullivan suffered a work-related inj ury.  It was proper for ALJ Cannici to co nsider the issue of causation because Sullivan requ ested a hearing on the issue of TTD benefits, which r equired Sullivan to prove 8 that the work accident caused a di sability and that the disability caused him to leave w ork.  By requesting a hearing on the iss ue of TTD benefits, Sullivan had notice that the issu e of causation would be considered by ALJ Cannici.  ALJ Cannici was not precluded fr om considering causation by ALJ Felter’s order b ecause that order only addressed whether Dr. Brunworth was an ATP for purposes of making the MMI determin ation, whereas ALJ Cannici was only asked to determi ne Sullivan’s entitlement to TTD benefits and w hether respondents should pay penalties for their failu re to pay those benefits.  The law of the case doctrine did no t preclude ALJ Cannici from determining the issue becaus e that doctrine only applied to decisions of law and not the resolution of factual issues. II. Analysis ¶ 19 Sullivan contends that we should s et aside the Panel’s order because (1) he was denied due proc ess; (2) respondents previously 9 admitted that his back injury was compensable; and (3) ALJ Felt er had previously decided that his bac k injury was compensable. ¶ 20 We see no reason to set aside the P anel’s order. A. Standard of Review ¶ 21 As relevant here, we may only set aside the Panel’s order if the “denial of benefits is not supported by applicable law.” § 8-43-308, C.R.S. 2020. We review de novo t he ALJ’s and the Panel’s legal conclusions. See Colo. Dep’t o f Lab. & Emp. v. Esser , 30 P.3d 189, 193 (Colo. 2001). B. Due Process ¶ 22 We first reject Sullivan’s contention that he was denied due process because he was not giv en notice and an opportunity to b e heard on the issue of compensabili ty of his back injury. ¶ 23 Procedural due process requires that a party be given notice and an opportunity to be heard. See Hendricks v. Indus. Claim Appeals Off. , 809 P.2d 1076, 1077 ( Colo. App. 1990). When the administrative adjudication “turns on questions of fact, due process requires that the parties be appris ed of all the evidence to be submitted and considered, and tha t they be afforded a reasonable 10 opportunity in which to confront adverse witnesses and to present evidence and argument in support of their position.” Id. ¶ 24 Sullivan filed an application for a hear ing seeking an order that would require respondents t o pay him TTD benefits from October 4, 2019, through October 23, 2019. ¶ 25 A claimant has “the burden of prov ing entitlement to benefits by a preponderance of the evidenc e.” § 8-43-201(1), C.R.S. 2020. To be entitled to an award of TTD b enefits, a claimant must show that (1) the work injury caused a di sability; (2) he left work as a result of the injury; and (3) “the temp orary disability is total” and lasted “more than three regular wor king days.” Lymburn v. Sym bios Logic , 952 P.2d 831, 833 (Colo. Ap p. 1997); see also § 8-42- 103(1)(a), C.R.S. 2020. ¶ 26 Because a claimant must establish a causal connection between a work-related injury and a subsequent wage loss to obtain TTD benefits, Sullivan necessarily raised the issue of whether hi s back injury was caused by the work accident by requesting TTD benefits. Therefore, Sullivan had n otice that the relatedness of his back injury to the work restrictions would be determined at the hearing. Cf. Hendricks , 809 P.2 d at 1077-78 (concluding that the 11 claimant was denied procedural d ue process when the ALJ terminated her TTD benefits aft er finding that she had reached MM I because the parties had stipulat ed that the issue of MMI was premature and the only issues for the hearing were the claimant’s past due disability benefits and th e proper computation of her average weekly wage). ¶ 27 Sullivan also knew about the opini ons of Dr. Fall and Dr. Brunworth. Indeed, he included thos e reports in the exhibits that he tendered in advance of the heari ng. Respondents also included those reports in their hearing exhi bits. ¶ 28 Under these circumstances, we c onclude that the Panel properly determined that Sullivan h ad notice that the causation of his back injury would be an issu e at the hearing. C. Prior Admission ¶ 29 Next, Sullivan contends that resp ondents previously admitted that his back injury was related t o the work accident because they filed a GAL, knew his ATP was trea ting him for a back injury, and did not endorse the compensability of his back injury as an issue for the hearing. 12 ¶ 30 Although respondents filed a GAL, the filing of a GAL does not foreclose an employer’s right to dis pute the extent of a claimant’s injury. See Leprino Foods Co. v. I ndus. Claim Appeals Off. , 134 P.3d 475, 483 (Colo. App. 2005). Wh en a dispute arises after a GAL has been filed, an employer may g enerally assert that “the claimant di d not establish the threshold requir ement of a direct causal relationship” between the work inj ury and the claimed benefits. Snyder v. Indus. Claim Appea ls Off. , 942 P.2d 1337 , 1339 (Colo. App. 1997). Thus, respondents ha d a right to dispute the extent of Sullivan’s injury — that is, w hether Sullivan’s work restrictions from October 4, 2019, through Oct ober 23, 2019, were based on an injury that Sullivan sustained duri ng the work accident. ¶ 31 We also reject Sullivan’s argument that respondents admitted that his back injury was related t o the work accident because they knew his ATP was treating him f or a back injury and they did not endorse the issue for the hearing. To be sure, respondents not only knew that Sullivan was being treat ed for a back injury, they had contested liability for that treatm ent by having Sullivan undergo an IME and by filing a FAL in which t hey stated that Sullivan had reached MMI once he had no mor e symptoms related to the rib 13 fractures he had sustained. Altho ugh ALJ Felter concluded that the FAL was invalid, Sullivan shoul d have known that respondents would contest liability when he r equested TTD benefits based on his back injury. ¶ 32 We therefore conclude that these co ntentions do not require us to set aside the Panel’s order. D. Issue Preclusion, Claim Preclusi on, and Law of the Case ¶ 33 Finally, Sullivan argues that ALJ Cannici was precluded from determining that his back injury w as unrelated to the work accident by the doctrines of issue preclusion , claim preclusion, and the law of the case because (1) that issue h ad already been decided by ALJ Felter, who found that he was not at MMI for his back injury; and (2) ALJ Felter rejected the records o pining that the back injury was unrelated to the work accident. We disagree. 1. Issue Preclusion ¶ 34 We review de novo whether the doc trine of issue preclusion applies. See Morris v. Indus . Claim Appeals Off. , 2020 COA 129, ¶ 14. ¶ 35 Issue preclusion is “an equitable d octrine that operates to bar relitigation of an issue that has b een finally decided by a court or 14 administrative agency in a prior ac tion.” Brownson-Rausin v. I ndus. Claim Appeals Off. , 131 P.3d 1172, 1176 (Colo. App. 2005). The doctrine of issue preclusion applies to a workers’ compensation claim. See Morris , ¶ 12. The part y seeking to invoke the doctrin e has the burden of establishing its elements. See id. at ¶ 13. ¶ 36 Issue preclusion applies if (1) “th e issue sought to be precluded is identical to an issue actually determined in the prior proceeding”; (2) “the party against whom estoppel is asserted” was a party in the prior proceeding; (3) “there is a final judgment on the merits in the prior proceeding”; an d (4) “the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.” Bro wnson-Rausin , 131 P.3d at 1176 . ¶ 37 “An issue is necessarily adjudicat ed if it is essential to the judgment entered.” Id. This requir ement recognizes that “a previous tribunal may not have ta ken the care needed adequately to determine an issue that would not affect the disposition of the case.” Id. ¶ 38 The issue before ALJ Felter for d etermination was not the same issue that was decided by A LJ Cannici. ALJ Felter considered whether Dr. Brunworth was an ATP at the time she determined that 15 Sullivan had reached MMI. Based on his conclusion that Dr. Brunworth was not an ATP at that time, ALJ Felter concluded that the FAL was invalid. In contrast, the issue before ALJ Cannici was whether Sullivan was entitled to T TD benefits after he was given work restrictions in October 2019. Importantly, the issues of whether Sullivan injured his low er back due to the work accident, reached MMI, and was entitled to receive workers’ compensation benefits for his lower back injury w ere not before ALJ Felter for adjudication. ¶ 39 Because the issue before ALJ F elter (the validity of the FAL) was different from the issue befor e ALJ Cannici (whether Sullivan was entitled to TTD benefits), we c onclude that the doctrine of issu e preclusion does not apply. 2. Claim Preclusion ¶ 40 Although the doctrine of claim pr eclusion can apply to a workers’ compensation claim, see Holnam, Inc. v. Indus. Claim Appeals Off. , 159 P.3d 795, 797 (C olo. App. 2006), we conclude that it does not apply here. ¶ 41 Claim preclusion bars “the relitigat ion of matters that have already been decided as well as ma tters that could have been rais ed 16 in a prior proceeding but were not .” Id. at 798. “For a claim in a second proceeding to be preclud ed by a previous judgment,” the party must show that the first judgment was final and that both proceedings involved the same s ubject matter, claims for relief, and parties. Id. ¶ 42 The doctrine of claim preclusion d oes not apply because ALJ Felter’s order was not entered in a prior proceeding but the same workers’ compensation action. B ecause ALJ Felter concluded that the FAL was invalid, Sullivan has not yet been placed at MMI and the two hearings were part of the s ame workers’ compensation claim. 3. Law of the Case Doctrine ¶ 43 Under the law of the case doctrin e, “prior relevant rulings made in the same case are generall y to be followed.” Youngs v. Indus. Claim Appeals Off. , 2012 COA 85M, ¶ 35 (quoting In re Bass , 142 P.3d 1259, 1263 (Colo. 200 6)). However, the doctrine is discretionary and based primarily on considerations of judicial economy and finality. See i d. ¶ 44 ALJ Felter found that (1) Sullivan continued to see Dr. Anderson-Oeser for “leg and back i ssues”; and (2) Dr. Anderson- 17 Oeser had not yet placed Sullivan at MMI or opined about wheth er Sullivan had any permanent impai rment. However, ALJ Felter did not make any findings about wh ether Sullivan’s back injury was caused by the work accident. ¶ 45 Because ALJ Felter did not make t hose findings, there is no prior relevant ruling to follow. Thu s, we conclude that the law of the case doctrine does not apply. III. Conclusion ¶ 46 The order is affirmed. JUDGE J. JONES and JUDGE T OW concur.