The Employee appealed the ruling by the compensation judge that her current claim was barred by res judicata. The WCCA affirmed the decision.
The Employee began working for the Employer as a production stylist in 2004; in 2009 the Employee no longer had an assistant and began to perform additional physical work including lifting, carrying, bending, and loading products.
The Employee sought chiropractic treatment from October 2011 through January 3, 2012, reporting low back and hip pain as well as neck tension.
On January 23, 2012 the Employee sustained an admitted work injury to her back, neck and bilateral shoulders when she fell. Benefits were paid until an IME report was completed by Dr. Ghose, who opined the injury was not significant and she did not need restrictions; further liability was then denied.
The Employee sustained another work injury on October 19, 2012 to her left arm, shoulder, and neck while helping to carry a couch. She then returned to chiropractic treatment for symptoms in her neck, back, shoulders and hips. Later, in March 2013, the Employee underwent imaging which showed disc protrusions in the lumbar and cervical spine. An additional IME was completed by Dr. Ghose related to this new work injury. He opined this would have resolved within 12 weeks of chiropractic treatment; the Employee’s chiropractor later agreed. Following the IME report, further benefits were denied.
The Employee then also claimed a July 2, 2013 injury to her neck, back and shoulder when picking up and carrying a tuxedo. She worked with restrictions until she stopped working for the Employer July 19, 2013.
The Employee filed a claim petition July 29, 2013. A resulting IME opined any injuries in 2012 were temporary aggravations of her pre-existing conditions and were no longer substantial contributing factors. He opined she did not sustain a July 2, 2013 injury. Another examination occurred with Dr. Jhanjee in August 2014 which he had the same opinions.
Dr. Wengler then evaluated the Employee in January 2015, opining the 2012 work injuries were substantial contributing factors to her condition and her need to cease work activities in July 2013 were due to a Gillette aggravation injury to her cervical and lumbar spine. .
The Employee also began treating for depression symptoms which she claimed were consequential to her work injuries. A psychologist did indicated she had depressive disorder but did not associate with her work activities. The Employee was also seen for an IME by Dr. Zeller who agreed with the diagnosis of the treating provider, but indicated the work injuries were unrelated and that the work injuries were temporary strain injuries which had resolved.
Ultimately, the Employee’s claims for medical, wage loss, and rehabilitation benefits related to all injuries including a Gillette injury culminating on July 2, 3013 and the claim of consequential depression were consolidated for hearing.
At hearing, the compensation judge found the Employee failed to prove a compensable injury to her neck back or shoulders, specific or Gillette on July 2, 2103. The judge also found the Employee failed to prove she sustained consequential chronic pain syndrome or depression as a result of the January 23, 2012 or October 19, 2012 injuries. The judge considered the Employee’s testimony, and medical opinions in finding of nature, extent, and causation. The employee appealed pro se; the WCCA found the judge could reasonable find the opinions more persuasive than others and that the judge did not err in relying on the medical opinions.
After the 2016 hearing, the Employee continued treatment.
On October 9, 2017 the Employee filed a new claim petition alleging an October 27, 2011 Gillette injury to her sacroiliac, pelvic, and foot. Liability was denied and the insurer asserted the claim was barred by res judicata. The Employee amended to remove the previously mentioned body parts and added her right trapezius, right piriformis, and right hip. The parties agreed to bifurcate the claim to address issues of whether it was barred by res judicata, collateral estoppel, or statute of limitations; then a second hearing would be held to address claims if a judge found they were not barred.
The compensation judge denied the claim finding it to be barred by res judicata; the judge found the issues of collateral estoppel and statute of limitations to be moot. The Employee appealed.
On appeal, the Employee argued this claim was different, arising from a different set of facts and circumstances because it was a Gillette injury with a different culmination date. The Employer and insurer argued the 2016 proceeding involved the same parties, resulted in a judgement on the merit and involved the same cause of action.
The WCCA disagreed that this was a different set of facts and circumstances. With the exception of a different culmination date, the injuries claimed now are the same as those litigated in 2016. The date a Gillette injury culminates is when the cumulative effect of work duties on the Employee’s condition is sufficiently serious to disable the Employee from working, or another date of ascertainable event such the date of job duty changes, surgery recommendations, or new work restrictions. In this case, the Employee sought treatment October 27, 2011 but continued working through 2013. The judge in 2016 found there was not a Gillette as of July 213; this claim would necessarily include consideration of activities from 2011 through 2013. Therefore, it is based on the same condition that was previously litigated.
Takeaway: A workers’ compensation claim can be barred by res judicata under narrow circumstances, even if the employee alleges a new date of injury for a Gillette claim if the previous decision was based on the merits.