W.C. No. 4-727-794.Industrial Claim Appeals Office.
November 19, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ Harr) dated August 5, 2008, that denied and dismissed the claim. We affirm.
A hearing was held on August 5, 2008 before ALJ Harr at which the issues were whether the claimant sustained a compensable July 15, 2002 industrial injury and whether the claim was barred by the equitable doctrine of issue preclusion. ALJ Harr made the following pertinent findings of fact regarding the doctrine of issue preclusion. The claimant and respondents had previously appeared for a hearing before Administrative Law Judge Rumler (ALJ Rumler) on October 30, 2007. At the hearing before ALJ Rumler, the claimant raised the issues of compensability of the July 15, 2002 injury and medical benefits. The claimant specifically requested that ALJ Rumler enter an award of medical benefits of $11,345.49 for surgery on his nose. ALJ Rumler entered a Summary Order on November 5, 2007, that was served upon the claimant on November 7, 2007. In her Summary Order ALJ Rumler found that the claimant was accidentally hit in the face with a board on July 15, 2002. However, ALJ Rumler found that the claimant failed to prove that the accident resulted in a need for surgery upon his nose, which he had undergone on May 25, 2007. On April 10, 2008, the claimant filed another application for hearing, again endorsing the issue of compensability. The parties then appeared for hearing before ALJ Harr where the claimant argued that ALJ Rumler erred in finding certain facts and requested that ALJ Harr reweigh the evidence and award him medical benefits in the amount of $11,345.49 to cover medical expenses he incurred for treatment of his nose and sinus conditions.
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In addition, ALJ Harr made the following determinations. The claimant did not appeal ALJ Rumler’s order and it became a final judgment on the merits by operation of law. The issues the claimant raised before ALJ Harr were identical to those raised before ALJ Rumler. ALJ Harr also found that the claimant had a full and fair opportunity before ALJ Rumler to litigate the issues of compensability and medical benefits. ALJ Harr concluded that the claimant was precluded from relitigating the issues of compensability and medical benefits. The claimant appeals ALJ Harr’s order denying and dismissing his claim.
We first note that there are extensive attachments to the claimant’s petition to review. However, parties are expected to submit their evidence at the time of the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). The claimant’s representations and attachments to his brief may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Therefore, we may not consider the additional material submitted by the claimant.
In his brief in support of the petition to review the claimant reiterates that on July 15, 2002, he was struck in the face during the removal of oak flooring and wanted to obtain emergency medical treatment. He further asserts that his employer would not allow him to go and that he was wrongfully terminated from his employment. The claimant argues that he was involved in a subsequent car accident on December 18, 2002 and because of the necessity of regaining his strength and senses following the car accident, he did not file his worker’s compensation claim earlier.
However, in our view the decisive issue before ALJ Harr was whether the claim was barred by the equitable doctrine of issue preclusion. In our opinion, ALJ Harr correctly determined that claimant was precluded by the doctrine of issue preclusion from challenging the order denying his request for medical benefits resulting from his surgery. This is because the identical issue had been fully adjudicated by the same parties following the claimant’s prior application for hearing.
Here ALJ Harr found that the claimant had raised identical issues in the hearing before him as the claimant had raised at the hearing before ALJ Rumler. ALJ Harr found that the claimant and respondents were the same parties who appeared before him as had appeared before ALJ Rumler. ALJ Harr found that ALJ Rumler’s Summary Order was a final judgment on the merits of the issues of compensability and medical benefits. ALJ Harr found that the claimant had a full and fair opportunity before ALJ Rumler to litigate the issues of compensability and medical benefits. Therefore, ALJ Harr found the claim was barred by the doctrine of issue preclusion and dismissed the claim.
The record contains no transcripts of the hearing before the ALJ Harr. As a
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general matter, we must uphold ALJ Harr’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Therefore, the ALJ’s order is supported by substantial evidence in the record and we agree that issue preclusion bars further litigation.
Both issue preclusion and claim preclusion apply to administrative proceedings, including workers’ compensation claims. Red Junction, LLC v. Mesa County Bd. of County Comm’rs, 174 P.3d 841, 844 (Colo.App. 2007); Holnam, Inc. v. Indus. Claim Appeals Office, 159 P.3d 795, 797
(Colo.App. 2006). Issue preclusion bars relitigation of an issue if: (1) the issue 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, 25 P.3d 44, 47
(Colo. 2001).
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); Holnam, Inc. v. Indus. Claim Appeals Office, supra.
In our view, the ALJ correctly stated the law, made relevant factual findings and addressed all of the factors necessary to apply issue preclusion to the case. As noted above, here we must presume the pertinent findings of fact are supported by substantial evidence. Therefore, we find no reason to disturb ALJ Harr’s order. All the elements of issue preclusion have been met, and we conclude that the doctrine of issue preclusion bars claimant from further litigating whether the respondents were required to pay the amount of $11,345.49 to cover medical expenses he incurred for his nose and sinus conditions See Sunny Acres Villa, 25 P.3d at 47.
IT IS THEREFORE ORDERED that ALJ Harr’s order issued August 5, 2008 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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GEIR HANSEN, AURORA, CO, (Claimant).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: KATHERINE H. R. MACKEY, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: SCOTT NEILSON, DENVER, CO, (Other Party).
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