Jensen v. Donnelly Custom Mfg. Co., et. Al.

Jensen v. Donnelly Custom Mfg. Co., et. Al. No. WC20-6376 (W.C.C.A. April 8, 2021).

The Employee appealed the compensation judge’s denial of the Employee’s claims that she had sustained CRPS and was permanently and totally disabled as a result of her 2014 work injury.

On February 9, 2014 the Employee was injured as a result of a trip and fall while employed as a laborer for the Employer. Primary liability was initially admitted for a right hand sprain and forehead contusion and benefits were paid.

The Employee treated for ongoing right hand pain throughout 2014 which included occupational therapy. In July 2014, the Employee was seen by a Dr. Staiger, hand specialist, who suspected CRPS and referred the Employee to a pain clinic. The Employee was then seen in September and October 2014 for her left hand overuse symptoms after having worked with right hand restrictions; the Employee was then taken off work.

The Employee filed a claim petition in November 2014 seeking benefits for injuries to her head, both hands, wrists, arms, and consequential right upper extremity CRPS. The Employee was seen for an IME with Dr. Gedan in December 2014. Dr. Gedan found the Employee had no objective findings consistent with CRPS and no PPD rating.

A hearing was held before Judge Behr in July 2015. Judge Behr found the Employee did not prove she sustained CRPS as a result of her right hand injury, but that she had restrictions of the right hand that were the result of the work injury. Neither party appealed.

In December 2015, the Employee was seen by Dr. Kihtir for right arm and low back pain. Dr. Kihtir described a mottled appearance of the arm, pitting of the thumbnail, decreased arm and hand hair, decreased range of motion and swelling. The Employee was diagnosed with CRPS that was directly related to the 2014 injury. Dr. Kihtir opined the Employee was permanently and totally disabled secondary to CRPS and persistent right leg weakness in January 2017.

Dr. Gedan evaluated the Employee in March 2017 and his findings were similar to that in December 2014. He concluded the Employee did not have CRPS and disagreed the Employee was PTD.

In May 2017, the Employee was seen by Dr. Hess who also diagnosed her with CRPS and related it to the 2014 work injury. In July 2017 the Employee was awarded social security disability related to multiple conditions including CRPS. Dr. Hess provided a 44.5% PPD rating in September 2017.

Dr. Gedan again re-evaluated the Employee in January 2018 and found his findings to be the same and that the Employee did not have CRPS. He also disputed each PPD rating provided by Dr. Hess and indicated the Employee had a 0% PPD rating.

In February 2018, Dr. Kihtir opined the Employee’s condition was permanent and she would be unable to return to work. The Employee was then seen by Dr. Carlson at the Employer and Insurer’s request. Dr. Carlson opined the Employee sustained a contusion and sprain of right thumb in 2014 that had resolved within 8 weeks. He opined the Employee had a zero PPD rating and was not PTD.

The Employee claimed she was permanently and totally disabled based on a low back injury that occurred at the time of the 2014 work injury and based on her right hand CRPS. At the Hearing, the judge found the Employee did not suffer a low back injury in the 2014 fall and the CRPS had been tried and decided in the 2015 hearing. He also stated the Employee’s doctors had not indicated these symptoms began after the 2015 hearing and the Employee testified her symptoms remained the same as before that hearing. Based on these findings and principles of res judicata, the judge denied the CRPS claim.

The Employee appealed, arguing the judge erred by finding res judicata barred her claim based on the 2015 hearing. On appeal, the WCCA found res judicata did not bar the Employee from claiming benefits for a time period after 2015, but collateral estoppel could apply, and the judge had not addressed this issue. This was remanded. The Employer and Insurer then appealed this decision, which the Supreme Court affirmed.

In June 2020, the compensation judge stated no evidence or testimony would be considered on remand and ordered submission of written arguments. In the Findings and Order in October 2020, the Judge found the Employee’s CRPS claim was barred by the doctrine of collateral estoppel. The Employee now appeals.

The Employee argued the judge erred in not holding a hearing to allow additional testimony and evidence to consider whether the Employee’s condition had changed, which would include new evidence after the 2018 hearing. The WCCA found that the decision of whether to hold a hearing on remand is within the discretion of the Judge and there was no evidence to indicate the parties had agreed to expand the issues beyond the initial time period between the first 2015 hearing and the 2018 hearing.

The Employee also argued her claim for CRPS is not barred by collateral estoppel. Collateral estoppel applies to matters that were determined in a previous judgement based on the same or different cause of action. The compensation judge found the issue in 2015 and 2018 to be the same, whether the Employee had developed CRPS as a result of the work injury. He also found the Employee did not have CRPS based on the opinions of Dr. Gedan.

Substantial evidence supports the compensation judge’s findings and the judge’s denial of CRPS claims as barred by collateral estoppel. The decision is affirmed by the WCCA.