W.C. No. 4-704-673.Industrial Claim Appeals Office.
July 27, 2009.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Krumreich (ALJ Krumreich) dated May 12, 2009 that granted respondents’ motion for summary judgment, ordered the claimant’s application for hearing stricken and vacated the scheduled hearing. We affirm.
The claimant filed a claim for compensation in 2006 alleging an occupational disease beginning June 8, 2006 resulting in injury to his low back. Hearings were held in 2007 before ALJ Cannici on compensability and certain claimed benefits. ALJ Cannici in an order dated October 10, 2007 concluded that the claimant had failed to establish by a preponderance of the evidence that he suffered an occupational disease during the course of his employment with the employer. ALJ Cannici denied and dismissed the claimant’s claim for workers’ compensation benefits and on appeal we affirmed ALJ Cannici’s order. The Colorado Court of Appeals affirmed our order and no further appeal was taken.
In 2008, the claimant filed an application for hearing endorsing the issues of compensability and permanent total disability benefits, again referencing a June 8, 2006 occupational disease. The respondents filed a motion for summary judgment contending that the claimant was precluded from relitigating the issue of compensability.
ALJ Krumreich in an order dated March 6, 2009 noting that compensability is a threshold requirement that a claimant must establish before any compensation may be
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awarded found that the claimant was barred from relitigating that issue. ALJ Krumreich concluded that the claimant could not proceed to hearing on the issue of permanent total disability because no benefits could be awarded and that summary judgment in favor of the respondents was appropriate. ALJ Krumreich in his order March 6, 2009 also granted the respondents’ request for attorney fees. The claimant appealed and in a supplemental order dated May 12, 2009 ALJ Krumreich reversed his award of attorney fees but otherwise affirmed his March 6, 2009 order.
The claimant’s petition to review ALJ Krumreich’s March 6, 2009 supplemental order is presently before us. The petition to review contains only general allegations of error, derived from § 8-43-301(8) C.R.S. 2009. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
It is well-established that OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts’ Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers’ compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848
(Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). We note that summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo.App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundaton Health Plan v. Sharp, 741 P.2d 714 (Colo.App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App. 1991).
In the context of summary judgment, we review the ALJ’s legal conclusions de novo. See A.C. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). However, pursuant to § 8-43-301(8), C.R.S. 2009, we have authority to set aside an ALJ’s order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law. Here, the question on review is generally whether applicable law supports the ALJ’s grant of summary judgment on the ground
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that the claimant was barred by preclusive principles from relitigation of the issue of compensability. We do not understand any party to be contending that there were disputed issues of fact involving the application of preclusive principles to be resolved at a hearing. We conclude that the law supports the ALJ’s order.
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). We agree with ALJ Krumreich that the principles of claim preclusion apply to bar the claimant from re-litigating the compensability of the claimed low back injury as an occupational disease in the course of his employment with the employer. Here there is no dispute that ALJ Cannici’s order finding that the claimant’s low back injury was not compensable had become final after exhaustion of the appeal process by the claimant. The subject matter is the same because at the hearing before ALJ Cannici the issue to be determined was the scope of the employer’s liability for workers’ compensation benefits for an alleged injury to the claimant’s back that he asserted arose out of his employment. There is no dispute that the parties were identical in both the hearing before ALJ Cannici and the application that was before ALJ Krumreich. There is identity in the claims for relief since the claimant was again seeking compensation for the same injury as he did before ALJ Cannici. Therefore we see no error in ALJ Krumreich’s application of the principle of claim preclusion to bar the claimant from proceeding to hearing on his 2008 application on the issue of compensability.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 12, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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RICHARD DIAZ, FT LUPTON, CO, (Claimant).
INTERTAPE POLYMER GROUP, BRIGHTON, CO, (Employer).
CAMBRIDGE INTEGRATED SERVICES GROUP, INC., Attn: LINDA SCOTT, C/O: CAMBRIDGE ISGI, PHOENIX, AZ, (Insurer).
MORRELL LAW OFFICE, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
MCCREA BUCK, LLC, Attn: REGAN H ROZIER, ESQ./JAMES BUCK, ESQ., DENVER, CO, (For Respondents).
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