W.C. No. 4-297-289, 4-333-580Industrial Claim Appeals Office.
August 10, 2001
ORDER OF REMAND
In these consolidated workers’ compensation claims, the respondent seeks review of orders of Administrative Law Judge Muramoto (ALJ Muramoto) and Administrative Law Judge Henk (ALJ Henk) insofar as they awarded permanent total disability benefits based on the claimant’s occupational disease of carpal tunnel syndrome (CTS). The respondent contends these ALJs incorrectly gave collateral estoppel effect to a prior determination that the claimant is permanently and totally disabled. We set aside the contested orders and remand the matter for further proceedings.
This case has an unusually complex procedural history, but a review of that history is necessary to understand the issue. In September 1997 a hearing was held before ALJ Gandy in W.C. No. 4-297-289. This claim was based on a January 1996 knee injury, and the claimant sought permanent total disability benefits. In an order dated October 22, 1997, ALJ Gandy found that after the 1996 knee injury the claimant was transferred to “office work,” which caused him to develop CTS. After contracting CTS the claimant was unable to return to work. Relying principally on the claimant’s expert vocational evidence, ALJ Gandy found the claimant is permanently and totally disabled “as a result of the January 3, 1996 injury and consequences thereof.”
Ultimately, we affirmed ALJ Gandy’s award of permanent total disability benefits, and the respondent sought review in the Court of Appeals. (ICAO Order dated October 9, 1998). Insofar as pertinent, the respondent argued the evidence did not support ALJ Gandy’s finding of permanent total disability, and that the CTS was not a legally compensable consequence of the January 1996 knee injury. In its opinion dated July 22, 1999, the Court of Appeals affirmed our determination that the evidence supported ALJ Gandy’s finding of permanent total disability. However, the court also held the knee injury “was simply not the legal cause of the carpal tunnel syndrome.” Instead, the court stated “the CTS condition must be viewed as a separate injury contributing to claimant’s permanent total disability, and not as a compensable consequence of the original knee injury.” The court then remanded the case “for further proceedings in light of” its determination, and otherwise affirmed our order.
In December 1999 we remanded the matter to the Division of Administrative Hearings for proceedings consistent with the opinion of the Court of Appeals. The matter was assigned to ALJ Friend who issued an order dated January 28, 2000. ALJ Friend noted the claimant had filed a separate claim, W.C. No. 4-333-580, for the occupational disease of CTS, and that claim had not been consolidated with W.C. No. 4-297-289, which concerned the knee injury. ALJ Friend also stated the Court of Appeals had affirmed the determination of permanent total disability and, therefore, he did not “reach” that issue. Instead, ALJ Friend found the “January 1996 injury to the claimant’s knee did not and does not preclude the claimant from earning a wage as a data entry operator.” Consequently, ALJ Friend denied the claimant’s “request for permanent total disability benefits in this [W.C. 4-297-289] claim.” The order also stated that liability for the permanent total disability “is placed on the later May 1996 occupational disease.”
The respondent appealed the January 28 order insofar as it stated that liability for permanent total disability was placed on the occupational disease of CTS. However, we dismissed the appeal for lack of a final order because we concluded the contested portion of the order did not deny the claimant any benefits, nor did it require the respondent to pay benefits.
In May 2000, pursuant to the claimant’s motion, W.C. No. 4-297-289
and W.C. No. 4-333-580 were consolidated. A hearing was scheduled for October 24, 2000, on various issues including whether or not the claimant is entitled to permanent total disability benefits. However, prior to that hearing, the claimant filed a motion to limit presentation of evidence to the issue of whether or not CTS contributes to the claimant’s permanent total disability. The claimant argued the doctrine of collateral estoppel precluded the respondent from relitigating the issue of whether the claimant is permanently and totally disabled.
On September 29, 2000, ALJ Muramoto granted the claimant’s motion to limit the evidence. Applying the doctrine of collateral estoppel, ALJ Muramoto ruled the respondent was not entitled to relitigate the issue of permanent total disability at the October 24 hearing because that issue was litigated and resolved by ALJ Gandy’s order of October 22, 1997. Specifically, ALJ Muramoto concluded that “the parties and issues are identical to those at the original [1997] hearing, that the parties had a full and fair opportunity to litigate, and the adjudication of claimant’s permanent and total disability is a Final Order of the Court of Appeals.”
On October 24, 2000, the matter proceeded to hearing before ALJ Henk. At the commencement of the hearing ALJ Henk recognized ALJ Muramoto’s order and stated the “evidence at this hearing is limited to the sole issue on remand concerning whether the May `96 occupational disease caused Claimant’s permanent total disability.” (Tr. p. 3). In an order dated February 27, 2001, ALJ Henk found the claimant proved CTS is a “significant causative factor” of the permanent total disability, and awarded permanent total disability benefits payable under W.C. No. 4-333-580.
On review, the respondent seeks review of the orders of ALJ Muramoto and ALJ Henk arguing that it was wrongfully precluded from relitigating the issue of whether the claimant is permanently and totally disabled. The respondent argues ALJ Muramoto erroneously applied the doctrine of collateral estoppel because the issue of whether the claimant is permanently and totally disabled was not “necessarily adjudicated” by ALJ Gandy. The respondent reasons that the question necessarily litigated by ALJ Gandy was whether the knee injury was, in and of itself, sufficient to constitute a legal cause of the permanent total disability, not whether the claimant is permanently and totally diabled by a combination of the knee injury and CTS. We agree.
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. 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 “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 has been 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 has had a full and fair opportunity to litigate the issue in the prior proceeding.” Id. at 576.
Here, we are concerned only with the “identity of issues” requirement because the respondent does not challenge ALJ Muramoto’s application of the other elements. As the respondent argues, the identity of issues requirement is actually composed of two distinct elements. First, the issue which is to be precluded must have been “actually litigated” in the prior proceeding. Second, the issue must have been “necessarily adjudicated.” An issue is “necessarily adjudicated” when a determination of that issue was necessary to the judgment in the sense that resolution of the issue was necessary in determining the final outcome of the case. Bebo Construction Co. v. Mattox O’Brien, P. C., 990 P.2d 78, 86 (Colo. 1999). Put another way, if issues are determined in a proceeding, but the judgment is not dependent upon those determinations, relitigation of those issues in a subsequent proceeding is not precluded. Buckhannon v. U.S. West Communications, 928 P.3d 1331, 1336 (Colo.App. 1996).
In applying these principles here, we note the issue of whether a claimant is permanently and totally disabled is distinct from the issue of whether a particular industrial injury was the legal cause of the permanent total disability. In order to receive permanent total disability benefits the claimant must prove that he is unable to earn any wages in the same or other employment. Section 8-40-201(16.5)(a), C.R.S. 2000. Determination of this issue is one of fact for the ALJ. See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). The claimant must also prove the industrial injury was a “significant causative factor” in the permanent total disability. This element requires the claimant to prove there was a direct causal relationship between the industrial injury and the permanent total disability. Resolution of this element is also one of fact for determination by the ALJ. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866
(Colo.App. 2001); Seifried v. Industrial Commission, 736 P.2d 1262
(Colo.App. 1986).
We conclude that ALJ Gandy’s factual determination that the combined effects of the January 1996 knee injury and May 1996 occupational disease rendered the claimant permanently and totally disabled was not a necessary determination to the issue before him. Rather, as determined by the Court of Appeals and ALJ Friend, the necessary determination was whether the 1996 and knee injury, standing alone, was a “direct cause” of the permanent total disability.
ALJ Gandy’s October 1997 order treated the knee injury and the subsequent development of CTS as comprising a single industrial injury. Thus, ALJ Gandy’s order necessarily determined the claimant was permanently and totally disabled considering the combined effects of the knee injury and CTS. We affirmed this determination. However, the Court of Appeals ruled the knee injury could not be considered the legal cause of the CTS, and stated the CTS “must be viewed as a separate injury contributing to claimant’s permanent total disability.” The court then remanded the matter “for further proceedings in light of [its] rejection” of the ruling that the CTS was causally connected to the knee injury.
As we understand the court’s ruling, the dispositive issue before ALJ Gandy was not whether the combined effects of the knee injury and occupational disease rendered the claimant permanently and totally disabled. Rather, the dispositive issue was whether the knee injury, without regard to the subsequent intervening disease of CTS, could be considered the legal or direct cause of the claimant’s permanent total disability. Indeed, ALJ Friend interpreted the court’s ruling in the same way and found, as a matter of fact, that the claimant “is not permanently and totally disabled as a result of this January 1996 knee injury.” Hence, ALJ Friend denied permanent total disability benefits in W.C. No. 4-297-289, the claim for the knee injury.
It follows that ALJ Gandy’s determination that the combined effects of the knee injury and CTS rendered the claimant permanently and totally disabled was not a necessary finding with respect to the issue before ALJ Gandy. Consequently, even though that issue was fully litigated before ALJ Gandy and his finding was ultimately affirmed by the Court of Appeals, the finding should not have been given collateral estoppel effect before ALJ Muramoto and ALJ Henk when considering the effect of the CTS Bebo Construction Co. v. Mattox O’Brien, P.C., supra.
It follows the matter must be remanded for purposes of permitting an additional hearing to determine whether or not the claimant was rendered permanently and totally disabled by the effects of the CTS. At the hearing, both parties must be allowed to present evidence bearing upon this issue. In reaching this conclusion we recognize the claimant’s assertion that the “respondent was afforded the opportunity at the October 24, 2000 hearing to provide evidence as to whether the claimant is permanently, totally disabled.” (Claimant’s Brief at 9). While it is true the respondent presented some expert evidence which would be relevant to the issue of permanent total disability, we understand that ALJ Henk admitted this evidence for the limited purpose of determining whether the CTS was a “significant causative factor” in the already established permanent total disability. It is apparent from the transcript, as well as ALJ Henk’s order, that she considered herself bound by ALJ Gandy’s finding of permanent total disability and did not consider or determine that question. Further, we cannot speculate concerning what evidence the respondent might have presented but for the limitations established by ALJ Muramoto.
IT IS THEREFORE ORDERED that the order of ALJ Muramoto dated September 29, 2000, and the order of ALJ Henk dated February 27, 2001, are set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
Copies of this decision were mailed August 10, 2001 to the following parties:
Thomas Trujillo, 235 S. Irving St., Denver, CO 80219
Public Service Company of Colorado, Michelle Scholes, Xcel Energy, 550 15th St., #500, Denver, CO 80202
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Pendroy