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ICAO Sets Aside Permanent Total Disability Benefits Award for Failure to Endorse Issue at Time of Hearing on Permanent Partial Disability Benefits

In a claim handled by this attorney, the Industrial Claims Appeals Office recently set aside the Administrative Law Judge’s award of Permanent Total Disability benefits because the claimant failed to litigate the issue at the time the parties litigated the issue of Permanent Partial Disability benefits. Weibel v. The Kroger Company, W. C. No. 4-878-425-06 (September 22, 2015). In Weibel, the employer filed a Final Admission of Liability consistent with the impairment rating of the authorized treating physician. The claimant objected to the Final Admission of Liability and requested a Division IME, who provided a significantly greater impairment rating than the authorized treating physician. The employer, therefore, filed an Application for Hearing challengning the impairment rating of the Division IME physician. The claim filed a Response to Application for Hearing endorsing various other issues, but did not endorse the issue of Permanent Total Disability benefits. Neither party endorsed the issue of Maximum Medical Improvement.

The claim proceeded to hearing on the issue of Permanent Partial Disability benefits, the Administrative Law Judge entered an award and the employer filed a Final Admission of Liability consistent with the Administrative Law Judge’s order. Claimant then objected to the Final Admission of Liability and set the matter for a second hearing on Permanent Total Disability benefits. The employer endorsed the issue of claim preclusion, arguing that the claimant’s Application for Hearing on the issue of Permanent Total Disability benefits should be dismissed because the parties already had litigated the issue of permanent disability benefits at the first hearing. The Administrative Law Judge declined to dismiss the Application for Hearing, finding that the issue in the first hearing ( Permanent Partial Disability benefits) was not identical to the issue in the second hearing (Permanent Total Disability benefits), and awarded Claimant Permanent Total Disability benefits.

On appeal, the employer argued that the Administrative Law Judge erred in not dismissing the Application for Hearing under the doctrine of claim preclusion because Permanent Partial Disability benefits and Permanent Total Disability benefits both compensate an injured worker for the loss of future earning capacity. The Industrial Claim Appeals Office agreed that because both benefits compensate an injured worker for the loss of future earning capacity, the issue litigated in the second hearing (Permanent Total Disability benefits) was identical to the issue litigated in the first hearing (permanent Partial Disability benefits). Furthermore, because neither party challenged whether Claimant was at Maximum Medical Improvement at the first hearing the issue of Permanent Total Disability benefits was ripe for hearing at the first hearing.  Therefore, because the claimant could have litigated Permanent Total Disability benefits at the same time he litigated Permanent Partial Disability benefits, failed to do so as required by §8-43-203(2)(b)(II), the doctrine of claim preclusion prevented the claimant from setting a second hearing to litigate that issue.

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