W.C. No. 4-258-401Industrial Claim Appeals Office.
November 19, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied his petition to reopen. We affirm.
The record reveals that the claimant suffered an admitted back injury on June 2, 1995. On June 15, 1995, Dr. Vila-Balzac placed the claimant at maximum medical improvement (MMI) with zero permanent impairment. Based upon Dr. Vila-Balzac’s opinion, the respondents filed a Final Admission of Liability dated September 21, 1995, terminating temporary disability benefits and admitting liability for zero permanent partial disability benefits.
On September 30, 1996, the claimant filed a petition to reopen the claim alleging a “change in physical condition.” The claimant subsequently applied for a hearing on the petition and requested further medical and temporary disability benefits “from the date of MMI” to the present.
Following a hearing on January 9, 1997, the ALJ determined that the cause of the claimant’s worsened condition could not be determined. Therefore, the ALJ concluded that the claimant failed to sustain his burden to prove that he suffered a worsening of his condition from the industrial injury, and denied the petition to reopen.
On review, the claimant does not dispute the ALJ’s determination that he failed to prove a worsened condition from the industrial injury. Instead, the claimant contends that he timely objected to the respondents’ September 21, 1995 Final Admission of Liability. Consequently, he argues that the claim was not closed and he was not required to prove a worsened condition to obtain further benefits. Alternatively, the claimant contends that his failure to object to the Final Admission was due to an “error or mistake” resulting from the fact that a separate claim number was assigned to an ankle injury on August 22, 1995. Therefore, he argues that the claim should be reopened on grounds of “error or mistake.” Furthermore, the claimant contends that even if the claim was closed by his failure to contest the respondents’ Final Admission of Liability, the closure only affected his entitlement to temporary disability and medical benefits up to September 21, 1995.
The respondents contend that none of the claimant’s appellate arguments were made before the ALJ. Therefore, the respondents argue that the claimant’s arguments should not be considered for the first time on appeal. We agree with the respondents.
A party is bound by its judicial admission. Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993). Furthermore, a party may not take one position before ALJ and argue a contrary position on appeal. Schlage Lock v. Lahr, supra.
Here, there is no indication either in the pleadings or the transcript that the claimant was asserting the arguments set forth in his appellate brief. (Tr. pp. 87-88). To the contrary, at the commencement of the hearing the ALJ asked the parties to identify the disputed issues. In response, claimant’s counsel stated that the issue was “reopening.” (Tr. p. 3, lines 12-14). Thus, the claimant’s counsel inherently conceded that the claim was closed and subject to the requirements of the reopening statute currently codified at § 8-43-303 C.R.S. 1997.
Furthermore, the transcript reveals that the claim was tried on the sole issue of whether there was a natural worsening of the claimant’s condition from the June injury or whether the injury was aggravated during his subsequent employment with Penrose Hospital or Sunland Sanitary Supply. See Tr. pp. 7-8, 44, 87; compare Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996) (substance of estoppel argument raised before the ALJ and preserved for review even though term “estoppel” was not used). Accordingly, we conclude that the claimant’s appellate arguments were not properly raised before the ALJ. Under these circumstances, we shall not consider them for the first time on appeal. See Broadmoor Hotel v. Industrial Claim Appeals Office, 939 P.2d 460 (Colo.App. 1996); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 28, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Bill Whitacre
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed November 19, 1997
to the following parties:
Richard Tafoya, 1726 Wynkoop Dr., Colorado Springs, CO 80909
Susan Hunt, Pinon Hills Landscape Maintenance, Inc., P.O. Box 38024, Colo. Spgs., CO 80937
Penrose St. Francis Hospital, 2215 N. Cascade Ave., Colo. Spgs., CO 80907
Sunland Sanitary Supply, Inc., P.O. Box 25487, Albuquerque, NM 87125
Patrick J. McDivitt, Esq., 90 S. Cascade, Ste. 1490, Colorado Springs, CO 80903 (For the Claimant)
Susan Kurachi Reeves, Esq., 111 S. Tejon, Ste. 700, Colo. Spgs., CO 80903 (For Penrose Respondents)
Michael Goodman, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (CCIA Respondents)
Colorado Compensation Insurance Authority, Attn: Brandee DeFalco-Galvin, Esq. (Interagency Mail)
BY: __________________________