W.C. Nos. 4-730-533 4-729-809.Industrial Claim Appeals Office.
July 9, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated March 4, 2009, that determined the claimant’s claims involving injuries to her cervical spine were precluded by the doctrine of claim preclusion. We affirm.
This appeal involves three claims for compensation filed against the same self-insured employer. The first claim is captioned W.C. No. 4-730-533 and involves a claimed slip and fall resulting in an injury to claimant’s cervical spine on July 12, 2004 (2004 claim). The next claim is captioned W.C. No. 4-729-809 and involves a claimed occupational disease to the claimant’s cervical spine as a result of repetitive job duties with a claimed onset date of December 9, 2005 (2005 claim). The third claim is captioned W.C. No. 4-710-666 and involves an occupational disease with an onset of disability on March 4, 2006 (2006 claim).
The 2006 claim was heard before ALJ Broniak who issued an order dated September 19, 2007 that determined the claim for the claimant’s right elbow condition was compensable and awarded benefits. However, ALJ Broniak concluded that the claimant had not sustained an occupational disease or suffered an industrial injury to her neck and right shoulder. The claimant appealed contending that without a DIME the ALJ had no jurisdiction to determine the compensability of the cervical spine and right shoulder conditions. In an order dated January 31, 2008 we affirmed ALJ Broniak’s order determining that the ALJ was free to credit the opinions of any of the authorized treating physicians on the issue of compensability but was not bound by their opinions. We further determined that the ALJ was not deprived of jurisdiction to rule on
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compensability of the neck and shoulder complaints until a DIME had taken place. Our order was not appealed to the court of appeals.
Later, the claimant’s 2004 and 2005 claims were set for hearing before ALJ Cannici. The respondent filed a motion to dismiss the claims and in the order under appeal here ALJ Cannici found that ALJ Broniak had concluded that the claimant had not sustained an industrial injury or developed an occupational disease to her neck and right shoulder while working for the employer. ALJ Cannici found that although the claimant had attempted to split her claims into separate actions, her contentions relating to her cervical spine were fully adjudicated by ALJ Broniak’s final order in the 2006 claim. ALJ Cannici found that all of the criteria required for the application of the claim preclusion doctrine had been established therefore the claims for relief in the 2004 and 2005 claims were barred. The claimant brings this appeal and alleges five errors. We are not persuaded that ALJ Cannici committed any reversible error.
I.
The claimant first contends that ALJ Cannici erred in applying the doctrine of claim preclusion because in the claim before ALJ Broniak the claimant did not seek any benefits related to her cervical spine. The claimant contends that she only placed at issue the medical care provided for her elbow and temporary total disability benefits for the elbow. The claimant argues that she specifically requested different medical benefits from different medical providers, for different parts of her body and different periods of time at the hearing before ALJ Broniak than she sought before ALJ Cannici.
We note that for a claim in a second proceeding to be precluded by a previous judgment, there must exist (1) finality of the first judgment, (2) identity of subject matter, (3) identity of claims for relief, and (4) identity of or privity between parties to the actions. Cruz v. Benine, 984 P.2d 1173, 1176 (Colo. 1999). Therefore, the claimant argues that ALJ Cannici erred because the judgment of ALJ Broniak dealt with different requested benefits for different claims.
ALJ Cannici and the claimant both cite Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo.App. 2006). ALJ Cannici noted that in analyzing whether there is an identity of claims for relief, the focus is not on the specific claim asserted or the name given to the claim. Instead, the same claim or cause of action requirement is bounded by the injury for which relief is demanded, and not by the legal theory on which the person asserting the claim relies. Quoting fro Holnam, ALJ Cannici further noted that claim preclusion bars relitigation not only of all claims actually decided, but also of all claims that might have been decided if the claims result from the same injury.
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However, in our view the real thrust of the claimant’s argument here is a collateral attack on ALJ Broniak’s previous order rather than an attack on ALJ Cannici’s application of preclusive doctrines. Thus, the claimant argues here and had previously argued unsuccessfully that ALJ Broniak should not have considered her cervical neck condition. The claimant does not argue that there was not identity of subject matter and claims for relief in ALJ Broniak’s order with the subject matter and claims for relief presented to ALJ Cannici. Rather as we understand the claimant’s argument, she contends that because she only placed the issue of her elbow before ALJ Broniak that ALJ Broniak erred in considering her neck condition. Consequently the claimant contends that the medical and wage loss benefits properly before ALJ Broniak are not the same as the benefits sought before ALJ Cannici and therefore preclusive principles do not apply.
However, in our previous order we dealt with the propriety of ALJ Broniak’s consideration of the neck and shoulder complaints. In essence, the claimant’s present contention is the same as that previously argued in her petition to review ALJ Broniak’s September 19, 2007 order and was resolved by our order of January 31, 2008. Our order is now final and we see no reason to depart from it.
II.
The claimant next contends that the order of ALJ Broniak with respect to the cervical spine neither awarded nor denied any specific benefits and therefore the order was not final. In order to have preclusive effect ALJ Broniak’s order must be final. In our view, ALJ Broniak’s order was final.
The claimant cites cases for the proposition that orders which determine liability for benefits without determining the amount and type of benefits to be paid are interlocutory and not subject to review Flint Energy Services, Inc. v. Industrial Claim Appeals Office of State 194 P.3d 448 (Colo.App. 2008). However, ALJ Broniak’s order denied the compensability of the neck and shoulder complaints. Under § 8-43-301(2), C.R.S. 2008, a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty,” may file a petition to review. In our opinion, ALJ Broniak’s order was not interlocutory because it denied all benefits connected with the neck and shoulder claims. See Ortiz v. Indus. Claim Appeals Office, 81 P.3d 1110, 1111 (Colo.App. 2003) (final order has “traditionally been interpreted as including only those orders that grant or deny benefits or penalties.”).
III.
The claimant next contends that applying the principles of claim preclusion would result in denying the claimant due process. The claimant argues that we erred in affirming the order of ALJ Broniak because that created a situation where an ALJ may
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improperly deny benefits in the absence of a DIME. We disagree with the claimant but because the claimant did not pursue her appeal of our order the issue is now moot. State Compensation Ins. Fund v. Industrial 80 Colo. 130, 249 P. 653, Colo., September 27, 1926; See Wallace v. Indus. Comm’m 629 P.2d 1091 (Colo.App. 1981) (failure to perfect appeal deprives the court of jurisdiction to consider the merits of the claimant’s alleged denial of due process).
In any event, the claimant has not cited any authority, nor are we aware of any, that preclusive principles do not apply to bar relitigation of matters that were erroneously decided in a prior proceeding. To the contrary, preclusive principles may be applicable even if the final judgment was erroneous. Central Bank Denver, N.A. v. Mehaffy, Rider, Windholz Wilson 940 P.2d 1097 (Colo.App. 1997) (preclusion cannot be defeated simply by arguing that the prior judgment was wrong). Therefore, we disagree with the claimant that ALJ Cannici erred in applying claim preclusion here even if ALJ Broniak erred in the original order on this matter.
IV.
The claimant next argues that it was error to apply claim preclusion to an order ruling on a dispute not before ALJ Broniak. The claimant again argues that neither she nor the respondent placed at issue any medical benefit or period of temporary disability benefit related to the cervical spine before ALJ Broniak. The claimant again argues that it was error for ALJ Broniak to rule on the issue of cervical condition. In our view, this argument is merely a variation of the ones presented above. For the reasons stated there, whatever the merits of the claimant’s allegations of error by ALJ Broniak they do not persuade us that ALJ Cannici erred in applying preclusive principles in the present case before us.
V.
In the claimant’s fifth and concluding argument she reiterates her argument that once ALJ Broniak determined that a compensable injury occurred, she and the parties were bound by the authorized treating physician’s opinion as to MMI and impairment. The claimant, citin Toledo-Zavala v. Excel, W. C. Nos. 4-534-398, 4-534-399 (November 14, 2003) argues that the DIME procedures concerning MMI apply even when the respondent contests liability. Again, we are not persuaded that any alleged error by ALJ Broniak compels us to determine that ALJ Cannici committed reversible error here.
IT IS THEREFORE ORDERED that the ALJ’s order issued March 4, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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MARIA SANDOVAL, FORT MORGAN, CO, (Claimant).
CARGILL MEAT SOLUTIONS, Attn: ESTHELA NUNEZ, C.S. FORT MORGAN, CO, (Employer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
BLACKMAN LEVINE, L.L.C., Attn: TAMA L LEVINE, ESQ., DENVER, CO, (For Respondents).
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