W.C. No. 4-735-985.Industrial Claim Appeals Office.
July 10, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated March 30, 2009, that partially granted respondents’ motion for summary judgment and ordered that the claimant would not be permitted to re-litigate the calculation of her average weekly wage (AWW). We affirm.
Following a hearing ALJ Jones issued an order on August 4, 2008 determining the claimant’s AWW to be $582.80. The order of ALJ Jones was not appealed and is now final. The claimant later filed an application for hearing endorsing the issue of AWW. The respondents sought an order granting summary judgment on the issue of the computation of the AWW, arguing that the issue was previously litigated before ALJ Jones and the claimant was barred from re-litigating that issue by the doctrines of issue and claim preclusion. The AWW calculated by ALJ Jones had been based on the wages earned immediately prior to the injury. The claimant now sought the calculation of AWW to be done under the ALJ’s discretionary authority based upon a period of higher wages earned during an earlier period of work with the employer. ALJ Krumreich partially granted the respondents’ motion for summary judgment ordering that the claimant would not be permitted to re-litigate AWW based upon her earnings from the employer prior to the injury at the upcoming hearing. However, ALJ Krumreich denied the respondents’ motion for summary judgment as to the claimant’s claim that her AWW should be increased by the cost of continuation of the employer’s health insurance. The ALJ concluded that ALJ Jones had not adjudicated the issue whether the claimant’s AWW should be increased based on the loss of the employer’s health insurance coverage.
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Therefore, the ALJ concluded that preclusion principles did not bar the claimant from litigating that issue.
The claimant filed a petition to review, generally arguing that ALJ Krumreich’s order was contrary to the law and that the order did not address the claimant’s right to reopen any prior order. We note that the claimant has not filed a brief in support of her petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
It is well-established that OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts’ Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers’ compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). We note that summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo.App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundaton Health Plan v. Sharp, 741 P.2d 714 (Colo.App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App. 1991).
In the context of summary judgment, we review the ALJ’s legal conclusions de novo. See A.C. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). However, pursuant to § 8-43-301(8), C.R.S. 2008, we have authority to set aside an ALJ’s order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law. Here, the question on review is generally whether applicable law supports the ALJ’s grant of partial summary judgment on the ground that the claimant was barred by preclusive principles from relitigation of the issue of the average weekly wage. We do not understand any party to be contending that there were disputed issues of fact involving the application of preclusive principles to be resolved at a hearing. We conclude that the law supports the ALJ’s order.
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Here the ALJ found that under the application of either the doctrine of issue preclusion or claim preclusion the claimant should be barred from relitigating the determination of her AWW based upon her earnings with the employer prior to the injury. In our view it more properly comes within the category of “issue preclusion.” See Gallegos v. Colorado Groundwater Commission, 147 P.3d 20, 24, n. 2 (Colo. 2006) (Colorado Supreme Court has stated that it “uses the terms `claim preclusion’ and `issue preclusion’ instead of `res judicata’ and `collateral estoppel.'”) The court of appeals has noted that issue preclusion refers to a court’s final decision on an issue actually litigated and decided in a previous suit as being conclusive of that issue in a subsequent suit. See Estate of Scott v. Holt, 151 P.3d 642
(Colo.App. 2006) citing Rantz v. Kaufman, 109 P.3d 132 (Colo. 2005). In contrast, the court noted that “ongoing litigation” lacks preclusive effect, while claim preclusion requires a final judgment that completes the trial court’s adjudicatory process. Id. citing Smeal v. Oldenettel, 814 P.2d 904 (Colo. 1991). In our view, the determination of the claimant’s AWW was the resolution merely of an issue within the context of the larger workers’ compensation claim. ALJ Jones’s order was not a “final judgment that completed] the . . . adjudicatory process.”See Brown and Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). Hence, the principles of issue preclusion are applicable rather than those of claim preclusion.
Issue preclusion is an equitable doctrine that bars relitigation of an issue that has been finally decided by a court in a prior action Bebo Construction Co. v. Mattox O’Brien, 990 P.2d 78, 84 (Colo. 1999). Its purpose is to relieve parties of the burden of multiple lawsuits, to conserve judicial resources, and to promote reliance upon and confidence in the judicial system by preventing inconsistent decisions Id. Although issue preclusion was conceived as a judicial doctrine, it has been extended to administrative proceedings, where it “may bind parties to an administrative agency’s findings of fact or conclusions of law.” Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001). See also Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795
(Colo.App. 2006). The supreme court has stated that:
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 proceedings; (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., 25 P. 3d at 47.
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Here the claimant has not argued that the second, third or fourth elements necessary for summary judgment are not present. In any event the parties in the proceeding before ALJ Jones are the same as the parties before ALJ Krumreich. The order of ALJ Jones is final. There is not any reason to think that the claimant did not have a full and fair opportunity to litigate the issue of AWW in the prior proceeding before ALJ Jones.
On the first element of whether the issue sought to be precluded is identical to an issue actually determined in the prior proceedings, we note that in both instances the issue was AWW, although the claimant’s contentions in favor of increasing the AWW differed slightly in the two cases. However, the court of appeals has stated that in analyzing whether there is an identity of claims for relief, the focus is not on the specific claim asserted or the name given to the claim. Instead, the same claim or cause of action requirement is bounded by the injury for which relief is demanded, and not by the legal theory on which the person asserting the claim relies. Holnam, Inc. v. Industrial Claim Appeals Office, supra. Claim preclusion also bars relitigation not only of all claims actually decided, but also of all claims that might have been decided. Here, both claims sought an increase in the AWW based upon wages at the employer earned prior to the injury. In our view, there is sufficient identity of these claims to warrant the application of the doctrine of issue preclusion. In this respect, we note that ALJ Krumreich recognized that the contention that the AWW should be increased based upon health insurance premiums was a different issue and was not barred by the doctrine.
However, in her petition to review, the claimant argues that ALJ Krumreich erred because he failed to address the claimant’s right to reopen any prior order based on the allegations that the paystubs relied on previously were incorrect or that the respondents had admitted a higher wage. In the claimant’s objection to the respondents’ motion for summary judgment the claimant had argued that ALJ Jones’s order was subject to reopening upon error or mistake pursuant to § 8-43-303(1) C.R.S. 2008. ALJ Krumreich’s order does not specifically deal with the claimant’s argument concerning reopening. We acknowledge that a petition to reopen might present a different issue before ALJ Krumreich than was actually determined in the prior proceedings before ALJ Jones.
However, we do not find a petition to reopen in the record and the claimant’s application for hearing does not list reopening as an issue. Workers’ Compensation Rule of Procedure 7-3, 7 Code Colo. Reg. 1101-3
(2009) provides that a claimant may request to reopen a claim, pursuant to § 8-43-303, by submitting a request to reopen on a Division prescribed form and the request must be provided to the other party and all attorneys of record. Further Rule 7-3 provides that the request shall state the basis for reopening, and supporting documentation must accompany the request and the requesting party may file
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an Application for Hearing with the Office of Administrative Courts. The claimant has not contended nor do we see any evidence that the she availed herself of these procedures by filing a petition to reopen.
Because there was no petition to reopen before ALJ Krumreich he was not required to speculate concerning its possible effect on the case had one been filed. A “genuine issue” sufficient to defeat summary judgment cannot be raised simply by means of a hypothetical argument by counsel See Sullivan v. Davis 172 Colo. 490, 474 P.2d 218 (Colo. 1970). Therefore, the claimant cannot raise a “genuine issue” which could defeat a motion for summary judgment, by arguing that theoretically under a petition to reopen issues of mistake or waiver remain unresolved. Under these circumstances, we are not persuaded to interfere with ALJ Krumreich’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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ACE AMERICAN INSURANCE CO, C/O: ESIS, TAMPA, FL, (Insurer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON J MORRELL, ESQ., GREELEY, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: KATHLEEN M FAIRBANKS, ESQ., DENVER, CO, (For Respondents).