Sullivan v. ICAO

OK20CA2063 Sullivan v ICAO 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA2063

Industrial Claim Appeals Office of the State of Colorado

WC No. 5-072-843

James Sullivan,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado, CPC Logistics, and

ACE American Insurance,

Respondents.

ORDER AFFIRMED

Division IV

Opinion by JUDGE FREYRE

J. Jones and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Mark A. Simon, Denver, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Pollart Miller LLC, Brad J. Miller, Greenwood Village, Colorado, for

Respondents CPC Logistics and ACE American Insurance

1

¶ 1

In this workers’ compensation action, claimant, James

Sullivan, seeks review of a final order of the Industrial Claim

Appeals Office (Panel), which affirmed the decision of an

administrative law judge (ALJ). The ALJ denied Sullivan’s requests

(1) for temporary total disability (TTD) benefits from October 4,

2019, through October 23, 2019; and (2) to impose penalties

against employer, CPC Logistics (CPC), and insurer, ACE American

Insurance (collectively respondents), for their failure to pay those

benefits. We affirm the Panel’s order.

I. Background

¶ 2

Sullivan worked as a truck driver for CPC. On March 18,

2018, Sullivan was putting fuel into his work truck when he slipped

and fell backward onto a concrete barrier (the work accident). Later

that day, Sullivan drove himself to the emergency room where he

was diagnosed with three fractured ribs on his left side.

¶ 3

The following day, Sullivan went to see Dr. Charles Wenzel.

Sullivan reported left-sided rib pain, right-sided trapezial pain, and

left leg pain. Dr. Wenzel referred Sullivan to Dr. Gretchen

Brunworth for pain management.

2

¶ 4

On March 20, 2018, Sullivan went to see Dr. Brunworth.

Sullivan reported stiffness and discomfort in his right neck and

shoulder region, tingling and discomfort down his right arm into his

forearm, and left-sided rib pain.

¶ 5

Sullivan continued to see Dr. Brunworth through May 2018.

As time went on, Sullivan reported lower back pain and pain in his

left leg. On May 29, 2018, Sullivan reported that his rib pain had

dissipated. So Dr. Brunworth discharged him from treatment,

stating, “If Dr. Wenzel deems that the low back condition is related

to his injury and he needs some assistance with evaluating and

treating that condition, I am happy to see him back.”

¶ 6

On July 30, 2018, Dr. Wenzel transferred Sullivan’s pain

management care to Dr. Roberta Anderson-Oeser. When Sullivan

first saw Dr. Anderson-Oeser in July 2018, he reported that he had

“immediate cervical and low back pain and left leg pain and

paresthesias” at the time of the injury.

¶ 7

About a month later, Sullivan told Dr. Anderson-Oeser that he

wanted to return to full-duty work without restrictions because he

was bored being at home. Based on his request, Dr. Anderson-

Oeser released Sullivan to full-duty work.

3

¶ 8

Respondents had been paying Sullivan TTD benefits. After

Sullivan returned to full-duty work, respondents filed a General

Admission of Liability (GAL), terminating those benefits. The GAL

admitted medical benefits and TTD benefits from March 19, 2018,

through April 15, 2018, and June 11, 2018, through August 27,

2018.

¶ 9

On September 19, 2018, Sullivan underwent a respondents’

independent medical examination (IME) with Dr. Allison Fall. Dr.

Fall opined that

 the work accident resulted in three left-sided rib

fractures and a temporary aggravation of Sullivan’s

cervical myofascial pain, both of which had dissipated;

 Sullivan had pre-existing chronic lower back and leg pain

for which he had taken opioid medication; and

 Sullivan reached maximum medical improvement (MMI)

on May 29, 2018, with no permanent impairment or work

restrictions related to the work accident after that time.

¶ 10

On February 13, 2019, Dr. Brunworth conducted a medical

records review and agreed with Dr. Fall’s conclusions. She opined

that there was no evidence that Sullivan sustained a lower back

4

injury from the work accident and agreed that Sullivan reached

MMI on May 29, 2018, with no permanent impairment or work

restrictions.

¶ 11

Based on Dr. Brunworth’s report, respondents filed a Final

Admission of Liability (FAL). Respondents stated that Sullivan (1)

reached MMI on May 29, 2018; (2) had no permanent impairment;

and (3) was not entitled to maintenance care after he reached MMI.

¶ 12

Sullivan challenged the validity of the FAL. After an

evidentiary hearing, ALJ Edwin Felter concluded that the FAL was

invalid because Dr. Brunworth was not an authorized treating

physician (ATP) when she determined that Sullivan was at MMI.

¶ 13

In the meantime, Sullivan continued to be treated by Dr.

Anderson-Oeser to alleviate the pain in his lower back and lower left

extremity. On October 3, 2019, Sullivan told Dr. Anderson-Oeser

that his pain, numbness, tingling, and weakness were increasing

with sitting and driving. Along with her treatment

recommendations, Dr. Anderson-Oeser gave Sullivan work

restrictions that included “no commercial driving or

loading/unloading trucks.” Those work restrictions continued until

5

October 23, 2019, when Dr. Anderson-Oeser placed Sullivan on

modified work duty.

¶ 14

Respondents refused to pay Sullivan TTD benefits from

October 4, 2019, through October 23, 2019. So Sullivan filed an

application for hearing, requesting (1) TTD benefits for that time

period; and (2) penalties based on respondents’ failure to pay them.

¶ 15

After an evidentiary hearing, ALJ Peter Cannici concluded that

Sullivan and failed to demonstrate by a preponderance of the

evidence that he was entitled to TTD benefits from October 4, 2019,

through October 23, 2019. In reaching that conclusion, ALJ

Cannici made the following findings of fact:

 Sullivan had a pre-existing lumbar spine condition that

required continuing treatment, as evidenced by a 2015

MRI. Medical records from October 2017 showed that

Sullivan reported lower back pain and had obtained

medication to treat his symptoms.

 The medical records and reports of Dr. Fall and Dr.

Brunworth showed that Sullivan’s work injury was

limited to three rib fractures and a temporary aggravation

of his cervical myofascial pain that had dissipated.

6

Sullivan did not suffer any injury to his lower back based

on the work accident.

 The opinions of Dr. Fall and Dr. Brunworth were

persuasive.

 The work restrictions from October 4, 2019, through

October 23, 2019, were based on Sullivan’s pre-existing,

non-work-related lower back condition and were not

caused by the work accident. At that time, his rib

fractures and the temporary aggravation of his cervical

myofascial pain had dissipated.

¶ 16

ALJ Cannici also concluded that respondents’ decision to

dispute TTD benefits after Sullivan had been working without

restrictions for thirteen months was not a basis for penalties. He

found that respondents properly terminated TTD benefits when

Sullivan returned to work in August 2018 and had no legal duty to

admit to TTD benefits until Sullivan established the existence of a

disability, which he had failed to do.

¶ 17

Sullivan filed a petition for review of ALJ Cannici’s order,

arguing that (1) he was not given notice and an opportunity to be

heard on the issue of whether his lower back condition was

7

compensable; (2) respondents previously admitted that his back

injury was compensable; and (3) the doctrines of res judicata,

collateral estoppel, and the law of the case precluded ALJ Cannici

from determining the issue of whether his back condition was

compensable because ALJ Felter’s prior order had already

determined that issue.

¶ 18

On review, the Panel affirmed ALJ Cannici’s order, making the

following conclusions:

 There was no basis to disturb ALJ Cannici’s

determination that Sullivan’s work restrictions from

October 4, 2019, through October 23, 2019, were

unrelated to the work accident because it was supported

by the opinions of Dr. Fall and Dr. Brunworth and other

medical evidence in the record.

 The issue was not compensability but the nature and

extent of the injury since respondents had admitted that

Sullivan suffered a work-related injury.

 It was proper for ALJ Cannici to consider the issue of

causation because Sullivan requested a hearing on the

issue of TTD benefits, which required Sullivan to prove

8

that the work accident caused a disability and that the

disability caused him to leave work.

 By requesting a hearing on the issue of TTD benefits,

Sullivan had notice that the issue of causation would be

considered by ALJ Cannici.

 ALJ Cannici was not precluded from considering

causation by ALJ Felter’s order because that order only

addressed whether Dr. Brunworth was an ATP for

purposes of making the MMI determination, whereas ALJ

Cannici was only asked to determine Sullivan’s

entitlement to TTD benefits and whether respondents

should pay penalties for their failure to pay those

benefits.

 The law of the case doctrine did not preclude ALJ Cannici

from determining the issue because that doctrine only

applied to decisions of law and not the resolution of

factual issues.

II. Analysis

¶ 19

Sullivan contends that we should set aside the Panel’s order

because (1) he was denied due process; (2) respondents previously

9

admitted that his back injury was compensable; and (3) ALJ Felter

had previously decided that his back injury was compensable.

¶ 20

We see no reason to set aside the Panel’s order.

A. Standard of Review

¶ 21

As relevant here, we may only set aside the Panel’s order if the

“denial of benefits is not supported by applicable law.” § 8-43-308,

C.R.S. 2020. We review de novo the ALJ’s and the Panel’s legal

conclusions. See Colo. Dep’t of Lab. & Emp. v. Esser, 30 P.3d 189,

193 (Colo. 2001).

B. Due Process

¶ 22

We first reject Sullivan’s contention that he was denied due

process because he was not given notice and an opportunity to be

heard on the issue of compensability of his back injury.

¶ 23

Procedural due process requires that a party be given notice

and an opportunity to be heard. See Hendricks v. Indus. Claim

Appeals Off., 809 P.2d 1076, 1077 (Colo. App. 1990). When the

administrative adjudication “turns on questions of fact, due process

requires that the parties be apprised of all the evidence to be

submitted and considered, and that they be afforded a reasonable

10

opportunity in which to confront adverse witnesses and to present

evidence and argument in support of their position.” Id.

¶ 24

Sullivan filed an application for a hearing seeking an order

that would require respondents to pay him TTD benefits from

October 4, 2019, through October 23, 2019.

¶ 25

A claimant has “the burden of proving entitlement to benefits

by a preponderance of the evidence.” § 8-43-201(1), C.R.S. 2020.

To be entitled to an award of TTD benefits, a claimant must show

that (1) the work injury caused a disability; (2) he left work as a

result of the injury; and (3) “the temporary disability is total” and

lasted “more than three regular working days.” Lymburn v. Symbios

Logic, 952 P.2d 831, 833 (Colo. App. 1997); see also § 8-42-

103(1)(a), C.R.S. 2020.

¶ 26

Because a claimant must establish a causal connection

between a work-related injury and a subsequent wage loss to obtain

TTD benefits, Sullivan necessarily raised the issue of whether his

back injury was caused by the work accident by requesting TTD

benefits. Therefore, Sullivan had notice that the relatedness of his

back injury to the work restrictions would be determined at the

hearing. Cf. Hendricks, 809 P.2d at 1077-78 (concluding that the

11

claimant was denied procedural due process when the ALJ

terminated her TTD benefits after finding that she had reached MMI

because the parties had stipulated that the issue of MMI was

premature and the only issues for the hearing were the claimant’s

past due disability benefits and the proper computation of her

average weekly wage).

¶ 27

Sullivan also knew about the opinions of Dr. Fall and Dr.

Brunworth. Indeed, he included those reports in the exhibits that

he tendered in advance of the hearing. Respondents also included

those reports in their hearing exhibits.

¶ 28

Under these circumstances, we conclude that the Panel

properly determined that Sullivan had notice that the causation of

his back injury would be an issue at the hearing.

C. Prior Admission

¶ 29

Next, Sullivan contends that respondents previously admitted

that his back injury was related to the work accident because they

filed a GAL, knew his ATP was treating him for a back injury, and

did not endorse the compensability of his back injury as an issue

for the hearing.

12

¶ 30

Although respondents filed a GAL, the filing of a GAL does not

foreclose an employer’s right to dispute the extent of a claimant’s

injury. See Leprino Foods Co. v. Indus. Claim Appeals Off., 134 P.3d

475, 483 (Colo. App. 2005). When a dispute arises after a GAL has

been filed, an employer may generally assert that “the claimant did

not establish the threshold requirement of a direct causal

relationship” between the work injury and the claimed benefits.

Snyder v. Indus. Claim Appeals Off., 942 P.2d 1337, 1339 (Colo.

App. 1997). Thus, respondents had a right to dispute the extent of

Sullivan’s injury — that is, whether Sullivan’s work restrictions

from October 4, 2019, through October 23, 2019, were based on an

injury that Sullivan sustained during the work accident.

¶ 31

We also reject Sullivan’s argument that respondents admitted

that his back injury was related to the work accident because they

knew his ATP was treating him for a back injury and they did not

endorse the issue for the hearing. To be sure, respondents not only

knew that Sullivan was being treated for a back injury, they had

contested liability for that treatment by having Sullivan undergo an

IME and by filing a FAL in which they stated that Sullivan had

reached MMI once he had no more symptoms related to the rib

13

fractures he had sustained. Although ALJ Felter concluded that

the FAL was invalid, Sullivan should have known that respondents

would contest liability when he requested TTD benefits based on his

back injury.

¶ 32

We therefore conclude that these contentions do not require

us to set aside the Panel’s order.

D. Issue Preclusion, Claim Preclusion, and Law of the Case

¶ 33

Finally, Sullivan argues that ALJ Cannici was precluded from

determining that his back injury was unrelated to the work accident

by the doctrines of issue preclusion, claim preclusion, and the law

of the case because (1) that issue had already been decided by ALJ

Felter, who found that he was not at MMI for his back injury; and

(2) ALJ Felter rejected the records opining that the back injury was

unrelated to the work accident. We disagree.

1. Issue Preclusion

¶ 34

We review de novo whether the doctrine of issue preclusion

applies. See Morris v. Indus. Claim Appeals Off., 2020 COA 129, ¶

14.

¶ 35

Issue preclusion is “an equitable doctrine that operates to bar

relitigation of an issue that has been finally decided by a court or

14

administrative agency in a prior action.” Brownson-Rausin v. Indus.

Claim Appeals Off., 131 P.3d 1172, 1176 (Colo. App. 2005). The

doctrine of issue preclusion applies to a workers’ compensation

claim. See Morris, ¶ 12. The party seeking to invoke the doctrine

has the burden of establishing its elements. See id. at ¶ 13.

¶ 36

Issue preclusion applies 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” was a

party in 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.” Brownson-Rausin, 131 P.3d at 1176.

¶ 37

“An issue is necessarily adjudicated if it is essential to the

judgment entered.” Id. This requirement recognizes 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.” Id.

¶ 38

The issue before ALJ Felter for determination was not the

same issue that was decided by ALJ Cannici. ALJ Felter considered

whether Dr. Brunworth was an ATP at the time she determined that

15

Sullivan had reached MMI. Based on his conclusion that Dr.

Brunworth was not an ATP at that time, ALJ Felter concluded that

the FAL was invalid. In contrast, the issue before ALJ Cannici was

whether Sullivan was entitled to TTD benefits after he was given

work restrictions in October 2019. Importantly, the issues of

whether Sullivan injured his lower back due to the work accident,

reached MMI, and was entitled to receive workers’ compensation

benefits for his lower back injury were not before ALJ Felter for

adjudication.

¶ 39

Because the issue before ALJ Felter (the validity of the FAL)

was different from the issue before ALJ Cannici (whether Sullivan

was entitled to TTD benefits), we conclude that the doctrine of issue

preclusion does not apply.

2. Claim Preclusion

¶ 40

Although the doctrine of claim preclusion can apply to a

workers’ compensation claim, see Holnam, Inc. v. Indus. Claim

Appeals Off., 159 P.3d 795, 797 (Colo. App. 2006), we conclude that

it does not apply here.

¶ 41

Claim preclusion bars “the relitigation of matters that have

already been decided as well as matters that could have been raised

16

in a prior proceeding but were not.” Id. at 798. “For a claim in a

second proceeding to be precluded by a previous judgment,” the

party must show that the first judgment was final and that both

proceedings involved the same subject matter, claims for relief, and

parties. Id.

¶ 42

The doctrine of claim preclusion does not apply because ALJ

Felter’s order was not entered in a prior proceeding but the same

workers’ compensation action. Because ALJ Felter concluded that

the FAL was invalid, Sullivan has not yet been placed at MMI and

the two hearings were part of the same workers’ compensation

claim.

3. Law of the Case Doctrine

¶ 43

Under the law of the case doctrine, “prior relevant rulings

made in the same case are generally to be followed.” Youngs v.

Indus. Claim Appeals Off., 2012 COA 85M, ¶ 35 (quoting In re Bass,

142 P.3d 1259, 1263 (Colo. 2006)). However, the doctrine is

discretionary and based primarily on considerations of judicial

economy and finality. See id.

¶ 44

ALJ Felter found that (1) Sullivan continued to see Dr.

Anderson-Oeser for “leg and back issues”; and (2) Dr. Anderson-

17

Oeser had not yet placed Sullivan at MMI or opined about whether

Sullivan had any permanent impairment. However, ALJ Felter did

not make any findings about whether Sullivan’s back injury was

caused by the work accident.

¶ 45

Because ALJ Felter did not make those findings, there is no

prior relevant ruling to follow. Thus, we conclude that the law of

the case doctrine does not apply.

III. Conclusion

¶ 46

The order is affirmed.

JUDGE J. JONES and JUDGE TOW concur.