Issue Preclusion: Winning the Issue at the Permanent Partial Stage Does Not Mean it’s Binding at the PTD Stage

Issue preclusion is the theory that “once a court has decided an issue necessary to its judgment, the decision precludes re-litigation of that issue in a later action involving a party to the first case. Issue preclusion bars re-litigation 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 issue preclusion 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.

In Bertolas, the claimant sustained an admitted injury to his back on January 20, 2015. On March 17, 2016 he was placed at maximum medical improvement (MMI) with an 11% whole person impairment rating for his lumbar spine and permanent restrictions of no lifting more than 20 pounds, no pushing or pulling more than 40 pounds, and no squatting, pivoting, crawling, or kneeling. Claimant was unable to perform his pre-injury work with these permanent restrictions. The claimant thereafter went to a Division Independent Medical Examination (DIME) in which he was assigned an 18% whole person impairment rating with the same restrictions. Respondents filed a Final Admission of Liability (FAL) consistent with the opinions of the DIME. However, the claimant objected and filed an Application for Hearing (AFH). In its response, respondents asserted the issue of causal relatedness, and at hearing the Administrative Law Judge (ALJ) found the respondents had overcome the DIME as to causal relatedness through medical records which supported that claimant suffered a temporary aggravation of his pre-existing degenerative disc disease which did not result in a permanent change in his condition.

Claimant then filed a second AFH on the issues of medical benefits and permanent total disability benefits (PTD). Respondents argued the issues of causation and relatedness were precluded from re-litigation by the doctrine of issue preclusion. However, the ALJ was not persuaded, instead finding that claimant was not barred from litigating PTD because neither the doctrine of issue preclusion nor the presumptive effect of the DIME opinion were applicable once the claimant applied for PTD benefits. The ALJ found claimant to be permanently and totally disabled reasoning claimant’s pre-existing degenerative disc disease was non-disabling and the admitted injury of January 20, 2015 contributed significantly to claimant’s permanent total disability by virtue of his permanent restrictions attributable to the admitted injury. Therefore, The ALJ ordered respondents to pay the claimant PTD from March 17, 2016 and continuing.

Respondents appealed this ruling arguing the ALJ erred in attributing claimant’s disability to the January 20, 2015 work-related injury. Respondents asserted the first ALJ’s order on permanent partial disability (PPD) conclusively litigated the issue of causal relatedness. The Industrial Claim Appeals Office (Panel) however found there was no error in ruling the doctrine of issue preclusion was inapplicable. The Panel noted the issue sought to be precluded in the second hearing was not identical to the issue actually determined in the first hearing as the first hearing involved overcoming the DIME‘s opinion as to the impairment rating by clear and convincing evidence while at the second hearing claimant bore the burden to prove he was permanently and totally disabled. The Panel acknowledged that while there was some overlap of evidentiary matters at both hearings, the issues in both hearings were different and required different burdens of proof, and therefore, issue preclusion was not applicable.

Rohn Bertolas v. Climax Molybdenum/Freeport McMoran Inc., W.C. No. 4-972-099 (ICAO May 3, 2019)

Would you like to know more? Contact Michelle Prince at mprince@pollartmiller.com or 877-259-5693.

 

From the May 2019 Newsletter 

2019-05-31T15:33:43+00:00