W.C. No. 4-194-838Industrial Claim Appeals Office.
January 16, 1997
ORDER OF REMAND
The claimant seeks review of an order of Chief Administrative Law Judge Felter (ALJ) striking her application for hearing. We set the order aside and remand for further proceedings.
The record contains no transcript of hearing. Therefore, this statement of the facts is gleaned from documents contained in the adjudication file, and the briefs of the parties.
In December 1995, the respondent filed a Final Admission admitting liability for various periods of temporary disability, as well as permanent disability based on nine percent impairment of the right upper extremity. The admission indicated that the claimant’s average weekly wage is $361.72 per week. The respondent concedes that the claimant objected to the final admission of liability and subsequently filed an application for hearing on the issue of “permanent partial benefits.” The claimant’s application indicates that she was seeking permanent disability benefits based on a “whole person impairment rating.”
The matter then proceeded to a hearing on July 16, 1996. After the hearing the respondent was apparently directed to prepare a proposed summary order reflecting the ALJ’s determination that the claimant should be awarded permanent partial disability benefits based on a 6.4% whole person impairment. The respondent submitted the proposed order, but on July 23, 1996, claimant’s counsel wrote to the ALJ stating that she disagreed with the order because it reflected an incorrect “dollar figure for the value of the 6.4% whole person rating.” Specifically, claimant’s counsel asserted that there was a factual dispute concerning the claimant’s average weekly wage, and the “dollar figure” should be “stricken . . . so that this average weekly wage issue may be resolved.”
The letter from claimant’s counsel was apparently received by the ALJ on July 29, 1996, the same day he signed the proposed summary order. The order states that the respondent is “liable for permanent partial disability in the amount of 6.4% as a whole person.” However, it is undisputed that the ALJ crossed out that portion of the proposed summary order stating the specific dollar amount for the award of permanent partial disability benefits.
Subsequently, the claimant filed a second application for hearing listing the issues as average weekly wage, temporary disability benefits, and permanent partial benefits. The respondent moved to dismiss the application on the ground that litigation of the issue of average weekly wage was barred under the doctrines of res judicata and collateral estoppel. In an order dated September 18, 1996, the ALJ granted the respondent’s motion and dismissed the application.
On review, the claimant contends that the ALJ erred in applying the doctrines of collateral estoppel and res judicata so as to preclude her from litigating the average weekly wage issue. Relying on such cases as Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991), the claimant reasons that the ALJ “implicitly reserved” the issue of average weekly wage when he crossed out the specific dollar amount contained in the proposed summary order. Moreover, the claimant reasons that determination of her medical impairment rating was not sufficient to resolve the unrelated issue of her average weekly wage, and hence, her ultimate entitlement to permanent partial disability benefits. We agree with the claimant that the ALJ erred in dismissing the application based on collateral estoppel and res judicata. However, our reasoning is slightly different than that of the claimant.
Res judicata, or claim preclusion, bars a party from relitigating all issues which were, or might have been, litigated in a prior proceeding. The derivative doctrine of collateral estoppel, or issue preclusion, precludes a party from relitigating an issue actually adjudicated in a different proceeding. Metcalfe v. Bruning Division of AMI, 868 P.2d 1145 (Colo.App. 1993). Res judicata and collateral estoppel both require that there have been a final judgment on the merits in the prior proceeding. People v. Hearty, 644 P.2d 302 (Colo. 1982). Judgments based on preliminary, subsidiary, or technical grounds are not sufficient to constitute final judgments on the merits. Saunders v. Bankston, 31 Colo. App. 551, 506 P.2d 1253 (1972).
Here, we agree with the claimant insofar as she argues that the July 29 summary order is insufficient to constitute a “final judgment” sufficient to invoke the doctrines of res judicata and collateral estoppel. Section 8-43-215, C.R.S. (1996 Cum. Supp.) provides as follows:
“At the conclusion of a hearing the administrative law judge or director shall make a summary order allowing or denying said claim without being required to make specific findings of fact. If compensation benefits are granted, it shall be sufficient to specify the amounts thereof, the disability for which compensation benefits are granted, by whom and to whom such benefits shall be paid and the method and time of such payments. Within fifteen working days after the conclusion of such hearing, the administrative law judge or director shall reduce such order to writing . . .” (Emphasis added).
The statute goes on to provide that a party dissatisfied with a summary order may request specific findings of fact and conclusions of law within fifteen days, and that such a request is a “prerequisite to a petition to review under § 8-43-301.” The purpose of this statutory scheme is to expedite the process of appeal from an ALJ’s initial determination of the issues. See Langton v. Rocky Mountain Health Care Corp., ___ P.2d ___ (Colo.App. No. 95CA1984, November 7, 1996).
Here, the record demonstrates that the ALJ’s summary order of July 29, 1996, was insufficient to trigger the preliminary appellate actions required by § 8-43-215. As the claimant argues, and the respondents concede, the ALJ deleted the provision of the summary order which specified the “amount” of benefits to be paid to the claimant. This action appears to have been deliberate considering the July 23 letter in which claimant’s counsel requested the ALJ to withhold determination of the amount of benefits.
It follows that the ALJ’s summary order does not constitute a final adjudication for purposes of res judicata and collateral estoppel. To the contrary, the summary order is insufficient to trigger the requirement that the claimant request specific findings of fact and conclusions of law, and therefore, it remains interlocutory and subject to further action by the ALJ. Since the summary order is interlocutory, the ALJ erred in holding that it affords a basis for dismissing the subsequent application for a hearing on grounds of collateral estoppel and res judicata Saunders v. Bankston, supra.
We also agree with the claimant that collateral estoppel is an incorrect basis for dismissing the application for hearing. Since the issue of average weekly wage was never actually adjudicated prior to entry of the summary order, collateral estoppel does not apply. Metcalfe v. Bruning Division of AMI, supra.
Under these circumstances, the ALJ’s order striking the application for hearing must be set aside and the matter remanded for further proceedings consistent with the views expressed herein. We hold only that the ALJ should not have dismissed the claimant’s application for hearing on grounds of collateral estoppel and res judicata. We do not purport to decide whether the claimant should be allowed to raise the average weekly wage issue at this stage in the proceedings.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 18, 1996, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
Copies of this decision were mailed January 16, 1997 to the following parties:
James R. Deese, P.O. Box 1176, Idaho Springs, CO 80452
Marsha Haugum, King Soopers, Inc., 65 Tejon St., Denver, CO 80223
Pamela Musgrave, Esq., 777 E. Speer Blvd., Ste. 210, Denver, CO 80203 (For the Respondent)
Michelle Holland, Esq., 1120 Lincoln St., Ste. 906, Denver, CO 80203 (For the Claimant)
By: ______________________________________________