W.C. Nos. 4-121-393, 4-463-073Industrial Claim Appeals Office.
July 9, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Snider (ALJ) insofar as it denied the petition to reopen W.C. No. 4-121-393. The claimant asserts the ALJ abused his discretion and denied due process of law by adjudicating the petition to reopen in the absence of respondent Heavy Equipment Training Institute (Heavy Equipment), the uninsured employer in W.C. No. 4-463-073. We affirm.
The claimant sustained a compensable back injury in 1991 while employed by respondent Express Temporary Services (Express Temporary). The claim was admitted by Express Temporary’s insurer, Transportation Insurance Company (Transportation). The claimant reached maximum medical improvement for the injury in 1995, but he experienced an increase in symptoms beginning in 1997.
In January 1998, the claimant began work for Heavy Equipment. This employment required the claimant to drive a truck, and driving aggravated the claimant’s symptoms. The claimant then filed a claim for benefits against Heavy Equipment.
Pursuant to the claimant’s motion, the petition to reopen the 1991 claim and the claim for benefits against Heavy Equipment were consolidated. However, Heavy Equipment failed to appear for the hearing scheduled on September 13, 2000. The ALJ stated the file did not contain documentation showing that Heavy Equipment received notice of the hearing, and stated he would “do some research” to determine whether notice was provided. The ALJ also stated he could not take any action affecting Heavy Equipment’s rights if it did not receive notice, and then inquired of claimant’s counsel concerning the remaining issues for hearing. (Tr. pp. 3-5). Counsel for the claimant stated the issues included medical benefits and temporary disability benefits on the 1991 claim. At no point did counsel for the claimant request a continuance because of Heavy Equipment’s absence, or indicate to the ALJ the claimant was opposed to entry of an order resolving the petition to reopen if Heavy Equipment had not received proper notice of the hearing.
On November 8, 2000, the ALJ entered an order. The ALJ specifically found the “file establishes” that Heavy Equipment did not receive timely notice of the hearing in accordance with § 8-43-211(1), C.R.S. 2000. Thus, the ALJ entered no order in W.C. No. 4-463-073, the claim against Heavy Equipment. However, relying principally on the testimony of Dr. Hughes, the ALJ found the claimant’s worsened condition and need for medical treatment was caused by “prolonged driving and associated vibration in subsequent employment.” Consequently, the ALJ denied the petition to reopen W.C. No. 4-121-393.
The claimant filed a timely petition to review the ALJ’s order. However, the claimant did not timely file a brief in support of the petition, and we denied the claimant’s motion for an extension of time to file a brief.
The only specific arguments contained in the claimant’s petition to review involve the assertion that the ALJ abused his discretion by adjudicating the petition to reopen in the absence of respondent Heavy Equipment. The claimant asserts the effect of the ALJ’s order “is to subject him to potentially differing findings at different hearings before different ALJs as to the causation of his occupational condition.” The claimant argues the ALJ’s action denied him due process of law, and it ignored “basic tenets of jurisprudential or adjudicative prudential considerations, which preclude a tribunal from entering piecemeal orders which might reasonably subject the litigant to a substantial risk of differing and contradictory or conflicting results.”
In our view, the claimant waived any argument which might be made concerning the ALJ’s decision to adjudicate the petition to reopen W.C. No 4-121-393 (1991 claim) without ruling on the claim for benefits against Heavy Equipment. It is well-established that failure to raise an issue before the ALJ precludes appellate consideration of the issue Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997); Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995). Here, the ALJ clearly signaled his intent to rule on the petition to reopen while reserving the issue of Heavy Equipment’s liability. At no point did claimant’s counsel express surprise at Heavy Equipment’s absence, or suggest that its absence would hinder the claimant’s ability to prosecute its claim against Express Temporary. Neither did counsel for the claimant request a continuance on the ground the claimant could be subjected to conflicting decisions in the event the two claims were separately adjudicated. Under these circumstances, the claimant may not now seek to overturn the ALJ’s denial of the petition to reopen and obtain an additional hearing concerning the liability of the two respondent- employers. We need not consider whether, if the claimant had requested such relief, denial of the request would have constituted an abuse of discretion or a denial of due process.
In this regard, we note that Heavy Equipment cannot be considered an indispensable party to the hearing on the petition to reopen the 1991 claim merely because the claimant risks inconsistent results if the claims are separately adjudicated. To the contrary, the ALJ was capable of affording full relief between the claimant and the Transportation respondents without determining Heavy Equipment’s liability or exposing the Transportation respondents to greater liability than otherwise would exist. See Renaissance Salon v. Industrial Claim Appeals Office, 994 P.2d 447 (Colo.App. 1999); Intermountain Rubber Industries, Inc. v. Valdez, 688 P.2d 1133 (Colo.App. 1984).
Otherwise, the ALJ’s order is fully supported by the evidence and in accordance with applicable law.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 8, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 9, 2001 to the following parties:
Bruce D. Allmer, P. O. Box 205, Gilcrest, CO 80623
Express Temporary Services, 1135 8th Ave., Greeley, CO 80631-4009
Heavy Equipment Training Institute, 18324 U.S. Highway 30, Julesburg, CO 80737
Transportation Insurance Co., CNA Insurance Co., 10333 E. Dry Creek Rd., Englewood, CO 80112
Richard K. Blundell, Esq., Lauren Cabot Oray, Esq., and John Swanson, Esq., 1024 8th St., Greeley CO 80631 (For Claimant)
Bruce B. McCrea, Esq., 1777 S. Harrison St., #1110, Denver, CO 80210 (For Respondents Express Temporary Services and Transportation Insurance Co.)
BY: A. Pendroy