Kristopher Ouellette v. Wal-Mart Stores, Inc. and Claims Mgmt., Inc.

Kristopher Ouellette v. Wal-Mart Stores, Inc. and Claims Mgmt., Inc., No. WC19-6313

Kristopher Ouellette was employed as an inventory control specialist on March 17, 2011, when a pallet jack loaded with dog food rolled over his left foot.  The employer and its insurer admitted liability for the injury.

The employee suffered from lower extremity pain after the injury and was later diagnosed with complex regional pain syndrome.  In January 2012, a spinal cord stimulator was implanted.  Thereafter, the employee claimed he was unable to walk and the device was removed.  The employee was seen for an IME in November 2012 by Dr. Rupert Exconde.  Based on the employee’s claimed paraplegia, Dr. Exconde rated the employee as having 75 percent PPD. The employer and insurer commenced payment of weekly PPD benefits.

The employee filed a claim petition seeking payment of his benefits in a lump sum and seeking penalties against the employer and insurer for failing to pay benefits in that manner.  The employer and insurer filed a petition to discontinue benefits and the claims of the parties were heard by a compensation judge on February 5, 2014.  In his Findings and Order, the compensation judge determined that the preponderance of the evidence did not support a claim for 75 percent PPD.

In February 2019, the employee filed a new claim petition claiming 83 percent PPD. In support of his current claim for 83 percent PPD, the EE submitted the February 12, 2013, report of Dr. Exconde.  This report also served as the basis for the EE’s claim for 75 percent PPD in 2014.

The employee argues that his condition has deteriorated since 2014 and that he is not only entitled to present a new claim for PPD, but that his claim may be based upon the same evidence.  However, the employee has presented no support for this argument.

What the compensation judge did not address in dismissing the employee’s current claim is the PPD claimed beyond the 75 percent articulated by Dr. Exconde in his 2013 report.

The employer and insurer moved to dismiss the claim petition, arguing that the employee’s claims were barred by res judicata.  The compensation judge agreed with the employer and insurer and dismissed the employee’s claim petition with prejudice.

Holding: To the extent the employee’s current claim for permanent partial disability benefits is based on evidence that was presented in support of a prior claim that was adjudicated and denied, his current claim is barred by res judicata.  To the extent the employee’s current claim for permanent partial disability benefits is based on new evidence and for a different condition, the compensation judge must consider the compensability of that claim.