W.C. No. 4-130-484Industrial Claim Appeals Office.
November 5, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ Muramoto) which denied his claim for continuing medical benefits in the form of medications prescribed for sinus problems, acid reflux disease and reactive airway dysfunction syndrome (RADS). The claimant contends the ALJ erred in failing to apply the doctrine of collateral estoppel to bar relitigation of whether the claimant suffered from RADS as a result of the industrial injury. The claimant also contends the evidence does not support ALJ Muramoto’s findings that treatment for these conditions was not necessitated by the industrial injury. We affirm.
In December 1991 the claimant suffered an admitted industrial injury when he was exposed to sulfur dioxide gas. In March 1992 the claimant’s treating physician, Dr. Van Hook, diagnosed him with RADS. RADS is allegedly an “obstructive” pulmonary disease which affects the ability to exhale air.
In February 1994, the matter went to hearing on the issue of whether the respondents were liable for two ambulance transportation charges which the claimant incurred in July 1992 and August 1993. In a summary order dated February 23, 1994, ALJ Gandy ordered the respondents to pay for the charges. ALJ Gandy subsequently entered specific findings on March 25, 1994, and his order was affirmed by the Industrial Claim Appeals Panel (ICAP) in an order dated August 24, 1994. Although the claimant attached a copy of ALJ Gandy’s specific findings to his brief, a copy of ALJ Gandy’s specific findings was not entered into evidence when the present matter went to hearing in December 2000 and March 2001. Thus, the contents of the order would not ordinarily be considered evidence in the case. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). However, the ICAP order contains the following statement: “The ALJ specifically found that the claimant’s need for emergency medical care was `necessitated by his on-going reactive airway disease which resulted from the compensable occupational exposure to toxic gas.'” The ICAP order was not appealed.
In 1997, the parties settled the claim except for the respondents’ agreement to continue paying for “all reasonable and necessary” medical care related to the industrial injury. The claimant’s physicians have continued to prescribe a number of medications for treatment of RADS, sinus problems, and reflux disease. In August 2000 the respondents filed an application for hearing seeking an order relieving them of liability for further medical benefits on grounds the claimant’s conditions are not work-related, and that the prescribed treatments are not reasonable and necessary.
At the hearing, the respondents presented the reports and testimony of two medical experts, Dr. Repsher and Dr. Clifford. These physicians agreed that the industrial exposure to noxious gas was not sufficient to cause RADS, that the claimant’s pulmonary function tests are not consistent with RADS, and the claimant’s proper diagnosis is non-industrial “vocal cord dysfunction.” These physicians also testified the claimant’s sinus problems are a preexisting condition, and Dr. Clifford opined the reflux disease was caused by consuming certain foods, although some of the medications prescribed for treatment of RADS could aggravate the condition.
At the hearing, the claimant objected to “relitigating” the question of whether the industrial injury caused the claimant to suffer RADS. The claimant argued the issue was litigated before ALJ Gandy, and the doctrine of collateral estoppel precluded the respondents from relitigating the issue before ALJ Muramoto some six years later. In support of this argument, the claimant pointed out that in 1992 Dr. Repsher issued a report containing opinions nearly identical to those expressed in the year 2000.
However, crediting the opinions of Dr. Repsher and Dr. Clifford, ALJ Muramoto found the claimant does not have RADS, and does not need treatment of any kind for that condition. Further, the ALJ found the claimant’s sinus condition was preexisting and has not been aggravated by his industrial exposure. Further, the ALJ concluded there was no persuasive evidence that the industrial exposure aggravated the reflux disease, and it is more probable than not that the sinus problems are the direct or indirect cause aggravating the reflux disease.
In reaching these conclusions, the ALJ Muramoto concluded the doctrine of collateral estoppel did not preclude relitigation of the issue of whether the claimant suffers from RADS. In fact, she concluded the order of ALJ Gandy did not “deal with issues identical to those” before her, and “ALJ Gandy made no determination of whether claimant had RADS.” Instead, ALJ Muramoto concluded the precise issue determined by ALJ Gandy was whether the respondents were liable “for ambulance transportation and emergency room treatment on two occasions.”
I.
On review, the claimant first contends ALJ Muramoto erred in concluding the doctrine of collateral estoppel did not preclude the respondents from relitigating the issue of whether the claimant suffered from RADS caused by the industrial injury. The claimant argues the issue was expressly determined by ALJ Gandy, and the respondents could not relitigate the identical issue before ALJ Muramoto. The claimant specifically cites ALJ Muramoto’s Finding of Fact 13, which determined the claimant’s exposure to toxic gas was “minimal and not biologically significant.” We disagree, although for reasons different than those stated by ALJ Muramoto.
Collateral estoppel bars relitigation of an issue determined in a prior proceeding if the issue in the later proceeding is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; the party against whom estoppel is asserted was a party to or was in privity with a party to the prior proceeding; there was a final judgment on the merits in the prior proceeding; and the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Collateral estoppel may be applied to a factual determination reached in the first proceeding even if the subsequent proceeding involves a different legal issue. M M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998).
Here, we disagree with ALJ Muramoto’s conclusion that ALJ Gandy “made no determination of whether claimant had RADS.” To the contrary, as reflected in our order March 24, 1994, ALJ Gandy found the claimant had “reactive airway disease” which was caused by his exposure to toxic gas. Further, resolution of this issue appears to have been “necessarily adjudicated” because ALJ Gandy was required to determine whether the claimant’s shortness of breath, and hence the need for emergency treatment, was caused by a condition resulting from the industrial injury or by alleged efficient intervening causes. (ICAP order pp. 2-3). Further, ALJ Gandy necessarily found, as a matter of fact, that the exposure was “biologically significant” because he found it caused RADS. Thus, there appears to have been an identity of factual issues before ALJ Muramoto and ALJ Gandy, at least as to whether the claimant ever suffered from injury-related RADS. This is true even though the precise legal issues considered by the two judges were different.
Nevertheless, we agree with the respondents that they did not have a “full and fair opportunity to litigate” before ALJ Gandy the issue of whether the claimant had injury- related RADS. The question of whether a party had a full and fair opportunity to litigate an issue in the first proceeding depends on whether the party had the same incentive to defend itself in the first proceeding that it had in the second. This in turn depends on the relative exposures to financial liability between the two proceedings, as well as variations in exposure dependent on differences in the “finality or permanence” of the two judgments. Sunny Acres Villa v. Cooper, 25 P.3d 44, 47 (Colo. 2001). Hence, in the Sunny Acres case, the Supreme Court held that a causation finding reached after a hearing on temporary partial disability benefits was not collateral estoppel on the issue of causation when the claimant was seeking permanent total disability benefits. The court reasoned that the “difference in potential duration of benefits [between temporary total and permanent total] alone demonstrates the difference in exposure to an employer” so as to prohibit application of collateral estoppel. Id. at 48.
Applying the principles established in Sunny Acres Villa here, we are compelled to conclude the respondents did not have a “full and fair” opportunity to litigate the issue of causation before ALJ Gandy. The issue before ALJ Gandy was limited to two medical bills for ambulance transportation. Further, as we held in our previous order, these benefits were not considered to be medical benefits awardable unde Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988), because they were not awarded in conjunction with “the hearing on the final award of permanent disability” benefits.
In contrast, the medical benefits which the respondents were paying in the year 2000 were, as the claimant admits at p. 8 of his brief, payable under Grover v. Industrial Commission. Indeed, the entire claim had been settled except for ongoing medical benefits. In Grover, the court interpreted the statute currently codified at § 8-42-101(1)(a), C.R.S. 2001, as authorizing an award of medical benefits “for any future treatment reasonably necessary to relieve the claimant from the effects of the industrial injury or occupational disease even though such treatment will not be received until sometime subsequent to the award of permanent disability.” Id. at 710. Thus, the effect of Grover is to permit an award of lifetime medical benefits of indeterminate amount provided the claimant can show at the hearing on permanent disability substantial evidence “that future medical treatment will be reasonably necessary to relieve the injured worker from the effects of the work-related injury or occupational disease.” Id. at 711.
At the hearing before ALJ Gandy the respondents faced an adjudication determining their liability for two medical expenditures. Further, as we held previously, ALJ Gandy’s order did not implicate the respondents’ liability for lifetime Grover-style medical benefits. Consequently, the respondents’ potential liability before ALJ Gandy was substantially less in amount and duration than it was when the issue involved Grover-style medical benefits before ALJ Muramoto. In these circumstances, ALJ Muramaoto did not err in declining to apply the doctrine of collateral estoppel to the issues of whether the claimant ever suffered RADS caused by the exposure to toxic gas, and whether the exposure was biologically significant Sunny Acres Villa v. Cooper, supra. Because ALJ Muramoto was free to relitigate the issue of whether the claimant ever sustained injury-related RADS, she was certainly free to relitigate the issue of whether or not the claimant needed treatment for this condition, including Prednisone.
II.
The claimant next challenges the sufficiency of the evidence to support ALJ Muramoto’s findings that none of the conditions for which the claimant was seeking treatment were caused by the industrial exposure to toxic gas. (Findings of Fact 24-26). Essentially, the claimant argues the ALJ erred in crediting the testimony of Dr. Repsher and Dr. Clifford over that of the claimant’s treating physician and other physicians who examined and treated the claimant. We disagree.
The issue of causation is one of fact for determination by the ALJ Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). Because the issue is factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and plausible inferences she drew from the record. Wal-Mart Stores, Inc. v. Industrial claims Office, supra. We specifically note that the weight and credibility to be assigned expert medical opinion on the issue of causation is within the purview of the ALJ as the finder of fact. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, ALJ Muramoto meticulously cited the testimony of Dr. Repsher and Dr. Clifford which she found persuasive. Although there was conflicting evidence which might have led to contrary findings and conclusions, we may not substitute our judgment for that of the ALJ concerning the decision to credit certain medical evidence. Consequently, we find substantial evidence to support the ALJ’s pertinent findings of fact. Wal-Mart Stores, Inc. v. Industrial Claims Office, supra.
IT IS THEREFORE ORDERED that the order of ALJ Muramoto dated May 16, 2001, 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. 2001. 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 5, 2001 to the following parties:
John D. Landolt, 1400 S. Collier, #254, Longmont, CO 80501
Scott Specialty Gases, Inc., 500 Weaver Park Rd., Longmont, CO 80501-6017
Judy Bereza, Reliance Insurance Company, P. O. Box 16025, Phoenix, AZ 85011
Bob Ring, Esq., 530 S. College Ave., #2, Ft. Collins, CO 80524 (For Claimant)
Douglas A. Thomas, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Pendroy