W.C. No. 4-555-081Industrial Claim Appeals Office.
November 3, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied temporary disability benefits. We affirm.
On July 24, 2002, the claimant suffered an admitted work-related injury to his knee. That injury is the subject of this claim. On December 12, 2002, the treating physician imposed medical restrictions for the injury and on December 31, 2002, the claimant underwent arthroscopic surgery after which he was temporarily precluded from performing his regular employment.
On July 29, 2002, the claimant injured his right wrist. That injury is the subject of a workers’ compensation claim designated as W.C. No. 4-549-566. The claimant worked light-duty between August 5 and August 12, when he was released to regular employment. However, on September 5 the claimant was again restricted to modified employment. In February 2003, the claimant underwent surgery for the wrist injury and was restricted to left hand work only.
The respondents filed a Notice of Contest in W.C. No. 4-549-566, which the claimant received on or about August 19, 2002. The claimant was upset about the Notice of Contest and quit the employment. As a result, the employer did not offer the claimant modified employment after September 5, 2002.
The right wrist claim went to hearing on February 5, 2003, on the claimant’s request for temporary disability benefits commencing September 5, 2002. The ALJ determined the claimant was responsible for the termination of employment and, therefore, barred from receiving temporary disability benefits under § 8-42-105(4), C.R.S. 2003. Consequently, in an order dated February 25, 2003, (Respondents’ Hearing Exhibit A), the ALJ denied the claim for temporary disability benefits after September 5, 2002. We affirmed the ALJ’s order on review and the claimant filed a timely Notice of Appeal from our order.
On April 16, 2003, a hearing was held on the claimant’s request for temporary disability benefits in this claim. The ALJ determined that, based on the February 25 order, the claimant was collaterally estopped from litigating the question of whether he was responsible for the termination of employment on August 19, 2002. Relying on Longmont Toyota Inc., v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA0441, February 13, 2003), the ALJ further determined that the termination statutes create a permanent bar to the receipt of temporary disability benefits in these circumstances. Therefore, the ALJ denied temporary disability benefits after August 19, 2002.
On review, the claimant contends the ALJ erroneously precluded him from litigating the cause of his employment termination at the April 16 hearing in this claim. We perceive no error.
Initially, we note that the claimant’s Designation of Record includes the “complete Division of Workers’ Compensation file.” The claimant also adopts the arguments “briefed” in W.C. 4-549-566. However, the record transmitted to us on appeal does not include the complete Division of Workers’ Compensation file or the briefs filed in W.C. No. 4-549-566. Further, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the complete Division of Workers’ Compensation file or the pleadings from W.C. No. 4-549-566 as part of the evidentiary record for the hearing in this claim. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file or W.C. No. 4-549-566 and have restricted our review to the record made at the hearing.
To receive temporary disability benefits a claimant must establish a causal connection between the injury and the loss of wages. Section 8-43-103(1)(a), C.R.S. 2003. Section 8-42-105(4) and identical language in § 8-42-103(g), C.R.S. 2003 [the termination statutes], provide that “where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” A claimant is “responsible” if the claimant acted volitionally or exercised some control in light of the totality of the circumstances. Cf. Padilla v. Equipment Corp. 902 P.2d 414 (Colo.App. 1994).
The doctrine of collateral estoppel is directed to “issue preclusion,” and may be applicable when a party seeks to relitigate an issue of fact or law determined in a prior proceeding. Sunny Acres Villa Inc., v. Cooper, 25 P.3d 44 (Colo. 2001); M M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998). The doctrine bars relitigation of an issue previously determined if the issue: (1) sought to be precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Sunny Acres Villa Inc., v. Cooper, supra.
Here, the ALJ found that the February 5, 2003 hearing, [mistakenly denoted by the ALJ as December 11, 2002] and April 16 hearing involved identical issues and identical parties. This finding is supported by substantial evidence in the record including the ALJ’s order dated February 25, 2003. Therefore, we must uphold this finding on review. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). Further, the February 25 order was a final judgment on the merits of whether the claimant was responsible for the termination of employment on August 19, 2002. See Jeffco School District R-1 v. Industrial Commission, 698 P.2d 1350 (Colo.App. 1984); Bunnett v. Smallwood, 768 P.2d 736 (Colo.App. 1988).
However, the claimant disputes the ALJ’s further findings that the claimant had a full and fair opportunity to litigate the responsibility issue at the February 5 hearing and “in fact, vigorously litigated that issue.” (Finding of Fact 8). The claimant contends that at the April 16 hearing he sought to present evidence which might not have been relevant under the law as it existed prior to February 5, but was made relevant after February 13 when the court announced its holding in Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra. Therefore, the claimant argues the February 5 hearing did not afford him a full and fair opportunity to litigate the issues which were relevant on April 16. We are not persuaded.
In Sunny Acres Villa Inc., v. Cooper, supra, the Supreme Court held that a causation finding reached after a hearing on temporary partial disability benefits did not invoke the doctrine of collateral estoppel on the cause of the claimant’s permanent total disability because the “difference in potential duration of benefits” between temporary total and permanent total demonstrated that the insurer did not have the same incentive to litigate the causation issue at the hearing on temporary disability benefits. Id. at 48. Thus, the court concluded that the doctrine of collateral estoppel did not bar religitation of the causation issue at the hearing on permanent total disability benefits.
However, it is the burden of the appealing party to provide a record which justifies appellate relief. Hanna v. Print Expediters Inc., P.3d__ (Colo.App. No. 02CA2237, June 5, 2003). The claimant’s arguments notwithstanding, the record is legally insufficient to support the claimant’s contention that he did not vigorously litigate the question of whether he was responsible for the termination of employment at the February 5 hearing and did not have a comparable incentive to litigate the issue on February 5. Further, we have reviewed the April 16 hearing transcript and it fails to support the claimant’s contention tha Longmont Toyota Inc., v. Industrial Claim Appeals Office, supra, necessitated the presentation of evidence which was not previously relevant and thus, not presented on February 5. (See Tr. pp. 12, 13, 18).
To the contrary the February 25 order supports the ALJ’s determination that the pertinent issues were vigorously litigated on February 5, 2002. Thus, the claimant has failed to establish grounds for us to disturb the ALJ’s finding that the claimant is collaterally estopped from relitigating the issue of whether he was responsible for the termination of his employment on August 19, 2002.
We also reject the claimant’s contention that the ALJ misapplied the law in finding that February 25 order barred the claimant’s entitlement to temporary disability benefits in this claim. In Longmont Toyota the court held that the statute is a “permanent bar” to the receipt of temporary disability benefits where the claimant is found to be responsible for the termination of regular or modified employment after the industrial injury. Slip op. p. 7.
The claimant in Longmont Toyota suffered a worsening of condition after he was discharged from modified employment. As a result of the worsening, the modified employment exceeded the medical restrictions imposed for the worsened condition and the employer did not offer any modified employment within the claimant’s new restrictions because the claimant was deemed to be responsible for the employment termination.
The facts alleged by the claimant are similar to the facts in Longmont Toyota. However, in Longmont Toyota, the court rejected the argument that the termination statute does not bar the claimant from recovering temporary disability benefits where the claimant’s disability is the result of a natural worsening of the industrial injury after the employment termination. Rather, the court concluded that the legislative intent of the termination statutes is to “completely cut off temporary benefits whenever an injured work is responsible for the separation from the employment.” The only exceptions mentioned by the court occur when the claimant’s disability is the result of a “work-related aggravation of the old injury or a new injury.” Slip op. 7.
We and the ALJ are bound by Longmont Toyota until and unless it is modified or reversed. C.A.R. 25(f). Furthermore, the claimant’s factual assertions do not fall within one of the exceptions listed in Longmont Toyota. Therefore, we conclude the ALJ did not err in determining tha Longmont Toyota precluded the claimant from receiving an award of temporary disability benefits in this claim commencing August 20, 2002.
Finally, the claimant contends that the termination statutes are unconstitutional insofar the statutes deny benefits for a disability following surgery based on “fault” which occurred prior the surgery. However, we lack jurisdiction to resolve the claimant’s constitutional arguments. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 28, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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. 2003. 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 November 3, 2003 to the following parties:
Raymond Dominguez, 7040 Francoia Court, Colorado Springs, CO 80817
Stresscon Corporation, c/o Concrete Products Co., 1801 Broadway, #1720, Denver, CO 80202-3845
Legal Department, Pinnacol Assurance — Interagency Mail
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Merrily S. Archer, Esq. and Douglas P. Ruegsegger, Esq., 1625 Broadway, #2300, Denver, CO 80202 (For Respondents)
BY: A. Hurtado