W.C. Nos. 4-374-217, 4-374-219Industrial Claim Appeals Office.
June 5, 2000
FINAL ORDER
The respondents seek review an order of Administrative Law Judge Gandy (ALJ Gandy) which awarded temporary total disability benefits commencing September 10, 1998. The respondents contend the award was precluded by a prior order of ALJ Rumler, and that the evidence does not support the award. We affirm.
In these consolidated workers’ compensation cases, it is uncontested that the claimant sustained compensable injuries to his low back on February 10, 1997, and November 7, 1997. These industrial injuries aggravated a preexisting condition at L 4-5 and S1.
It is also undisputed that the claimant sustained a non-industrial “burst fracture” when he fell off a roof on November 22, 1997. The November 22 accident required surgical fusion. During the course of treatment for this injury, the claimant came under the care of Dr. Wong.
On September 2, 1998, ALJ Rumler conducted a hearing concerning the claimant’s request for temporary total disability benefits commencing November 10, 1997, and continuing. In an order dated October 15, 1998, ALJ Rumler denied the request for temporary disability benefits. ALJ Rumler found that the claimant was performing his regular duties as a welder at the time he fell off the roof, and “had to stop working because of that incident.” However, ALJ Rumler also stated that temporary total disability benefits would commence if the claimant underwent surgery for the November 7 industrial injury, “or would commence at any other time the claimant would have restrictions due to the L 4-5, S1 level which would preclude him from performing his regular job and the employer could not accommodate those restrictions.” (Rumler Order of October 15, 1998, Conclusion of Law 6).
In December 1998, the claimant applied for a hearing concerning the issue of temporary total disability benefits commencing September 10, 1998. At the hearing, the claimant produced the report of Dr. Wong dated September 14, 1998. Although Dr. Wong noted “some mild residual discomfort” associated with the L1 burst fracture, he also stated that the “area of persistent problem which keeps [the claimant] from returning to work is more the chronic L5-S1 and L4-5 difficulties.” The claimant also testified that pain associated with the industrial back injuries would preclude him from performing the lifting necessary to work as a welder. (Tr. p. 15).
In an order dated April 14, 1999, ALJ Gandy awarded temporary total disability benefits commencing September 10, 1998. In support of this determination, ALJ Gandy credited the claimant’s testimony concerning his disability, and Dr. Wong’s report of September 14. The ALJ determined that this evidence established that the 1997 industrial injury “was the cause of the claimant’s inability to return to work.”
I.
On review, the respondents contend that ALJ Rumler’s Conclusion of Law 6 is “law of the case” concerning the claimant’s inability to work commencing September 10, 1998. Consequently, the respondents argue that ALJ Gandy erred in awarding temporary total disability benefits because the issue is identical to the issue decided by ALJ Rumler. We are not persuaded.
The “law of the case” doctrine is a discretionary rule of practice which directs that issues which have previously been litigated and resolved should not be relitigated before the same tribunal. Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982). The doctrine applies to decisions of law rather than factual determinations. Mining Equipment Inc. v. Leadville Corp., 856 P.2d 81 (Colo.App. 1993). Here, ALJ Rumler’s denial of temporary total disability benefits was based on factual determinations, not legal determinations. Consequently, the doctrine of law of the case is inapplicable. Cf. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, October 28, 1999).
Neither do the doctrines of res judicata or collateral estoppel apply. Both of these doctrines require a final adjudication on the merits in a prior adjudication. People v. Hearty, 644 P.2d 302 (Colo. 1982): Cooper v. Industrial Claim Appeals Office, supra.
Here, ALJ Rumler limited her order to denying temporary total disability benefits for the period November 10, 1997 through September 9, 1998. Moreover, she explicitly reserved the issue of the claimant’s entitlement to temporary disability benefits thereafter, and stated the claimant would be entitled to prove temporary total disability at any point where he could establish a causal relationship between the industrial injuries and his wage loss. Thus, it is apparent that ALJ Rumler did not intend her order to have a preclusive effect with respect to future claims for temporary disability benefits, and ALJ Gandy did not err in refusing to give the order preclusive effect. See M M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998). This conclusion is consistent with an ALJ’s power to reserve certain issues for future adjudication. Section 8-43-207(1)(j), C.R.S. 1999.
II.
The respondents next contend the record lacks substantial evidence to support ALJ Gandy’s award of temporary total disability benefits. The respondents assert the claimant failed to show that the industrial injuries caused disability, which in turn resulted in wage loss in excess of three days. We disagree.
We do not dispute the respondents’ statement that an award of temporary total disability benefits depends on the claimant’s ability to prove: (1) the industrial injury caused the disability; (2) the injured employee left work as a result of the injury; and (3) the temporary disability is total and lasts for more than three working days. City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). The question of whether the claimant proved disability is one of fact for determination by the ALJ, and there is no requirement that the claimant prove disability by medical evidence. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). Further, the claimant need not prove the industrial injury is the sole cause of the wage loss, so long as it is a contributing cause. Horton v. Industrial Claim Appeals Office, 942 P.2d 1209 (Colo.App. 1996).
Because the issues are factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the claimant’s testimony and Dr. Wong’s September 14 report establish that by September 10, 1998, the symptoms associated with the claimant’s industrial injuries were sufficient to preclude his return to work as a welder independent of the November 22 non- industrial injury. In fact, Dr. Wong opined that the claimant’s symptoms stemming from the industrial injuries were the greater cause of the claimant’s inability to return to work. Thus, there is substantial, albeit conflicting, evidence in the record to support the ALJ’s determination that to some degree the claimant’s wage loss commencing September 10, 1998, was caused by the industrial injuries.
IT IS THEREFORE ORDERED that ALJ Gandy’s order dated April 14, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
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. 1999. 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 June 5, 2000
to the following parties:
Nelson Selcer, 18721 W. 4th Ave., Golden, CO 80401
Total Plumbing, 4701 N. Colorado Blvd., Denver, CO 80216-3218
Ginger Cook, Business Insurance Company, 2000 S. Colorado Blvd., #11500, Denver, CO 80222
Jordan S. Levine, Esq., 1490 Lafayette St., Ste. 203, Denver, CO 80218 (For Claimant)
Kent L. Yarbrough, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy