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Brownson-Rausin v. Industrial Claim Appeals Office of the State of Colorado10/20/2005
appointed to perform the DIME in 1995 had not performed a valid DIME, he could not perform a "follow-up" DIME in 2002. Finally, claimant argued that the evidence does not support a finding that she was at MMI.
After the Panel remanded for a final order, a second ALJ determined that the 2002 FAL was not an attempt to redetermine MMI and TTD, and therefore collateral estoppel did not apply. Accordingly, claimant's request to strike the FAL was denied. The ALJ also held that even though the first ALJ held that the DIME physician's first opinion was "irrelevant," he could properly perform a "follow-up" DIME. The second ALJ was not persuaded that claimant overcame the DIME physician's finding that MMI occurred in 1995. The Panel affirmed.
I.
Claimant raises several issues relating to the provisions in § 8-42-107(8)(b)(II) allowing a DIME without an ATP's finding of MMI.
A.
Claimant contends that the 2000 appellate opinion conclusively established that she was not at MMI in April 1995 and was entitled to continuing TTD benefits from that date forward. Thus, she reasons that the second ALJ violated principles of collateral estoppel by determining that she reached MMI in April 1995, as determined by the DIME physician. We disagree.
Collateral estoppel, or issue preclusion, is an equitable doctrine that operates to bar relitigation of an issue that has been finally decided by a court or administrative agency in a prior action. 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 estoppel 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 (Colo. 2001).
An issue is necessarily adjudicated if it is essential to the judgment entered. This requirement is justified by the recognition that a previous tribunal may not have taken the care needed adequately to determine an issue that would not affect the disposition of the case. Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78 (Colo. 1999).
In the 1999 order, the first ALJ found that when employer requested the DIME in 1995, the existing legal procedure in former § 8-42-107(8)(b) did not authorize a DIME on the issue of MMI unless the ATP had placed claimant at MMI. The ALJ found that this prerequisite was not present at the time of the DIME request, and therefore, the 1995 DIME was invalid. Because employer had not shown that claimant reached MMI or that any other grounds existed for terminating TTD benefits, employer was found liable for TTD benefits from 1994 "and continuing until terminated pursuant to law."
The appellate division agreed that the record supported the first ALJ's finding that the treating physician had not placed claimant at MMI. Therefore, it concluded that "employer was not entitled to preempt the treating physician's opinion by requesting an IME." Valley View Hosp. v. Indus. Claim Appeals Office, supra.
Neither the first ALJ nor the division determined, as a matter of fact, whether claimant had reached MMI. Rather, they determined that the legal prerequisite for making that determination, a finding of MMI by the ATP, had not yet occurred. Indeed, by stating that TTD benefits would continue "until terminated pursuant to law," the first ALJ recognized that MMI could still be determined in later proceedings.
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