Zabel v. Gustavus Adolphus College, et. al, No. WC18-6185 (W.C.C.A. October 12, 2018)
Lori Zabel worked as a post office clerk for Gustavus Adolphus College. On April 18, 2013 she slipped and fell on ice. She hit the back of her head, and suffered a brain/concussion injury. The employer and insurer admitted the injury and paid benefits. The employer and insurer then stopped wage loss benefits based on the argument that the employee’s injury was temporary and fully resolved. The employee objected and the employee’s objection was heard before a compensation judge. The judge issued Findings and Order dated April 25, 2017. The judge found that her symptoms were temporary and fully resolved by May 19, 2014. The judge denied the employee’s claim for temporary total disability benefits from August 2, 2016 through the date of the hearing. The employee did not appeal the Findings and Order.
The Findings and Order mention treatment that the employee received on July 13, 2015. The employee treated at Mayo Clinic on July 13, 2015 complaining of symptoms of nausea and vertigo since her concussion. She then treated on July 31, 2015, complaining of a headache that started on July 13, 2015 after she got sick, lost her balance and ran into a wall. The Findings state that the employee denied a new injury in July 2015.
In February 2018, the employee filed a claim petition seeking benefits related to a traumatic brain injury sustained at work on July 13, 2015. There was medical support in the form of a narrative report of Jessica Alm, D.O., which states that the employee experienced the dizziness and fell into the wall while sorting mail at work. The employer and insurer moved to dismiss the claim petition on the basis that the Findings and Order had a res judicata effect to bar her current claims. A special term conference was held before the compensation judge. The judge granted the employer and insurer’s motion to dismiss with prejudice. The judge stated that the employee could have and should have claimed the July 13, 2015 date of injury at the 2017 hearing and that since she did not appeal the findings and order, the Findings and Order barred her current claims. The employee appealed.
On appeal, the employee argued that the issue of whether she sustained a compensable work injury was not litigated or decided in 2017. The employer and insurer argued that the employee could have and should have brought her claim in the earlier proceeding and that since she did not, dismissal was appropriate under Schultte v. City of Hutchinson.
The W.C.C.A. opined that the doctrine of res judicata applies only with respect to issues that were actually litigated and decided. According to the W.C.C.A., “the test to determine whether an action is precluded is to determine whether the same evidence will sustain both actions.” The W.C.C.A. distinguished Schultte from this case because in Schultte the compensability of a later date of injury was at issue in the previous litigation (the employee had actually made a claim for the previous date of injury), and the employee’s later claim was based on the same facts and evidence as his earlier claim. In Schultte, there were two different legal theories for the compensability for the same dates of injury. Here, there are two different dates of injury at issue rather than two legal theories regarding the compensability of them. The W.C.C.A. agreed with the employee that the compensability of the 2015 injury was not presented to support such a claim, the defense did not address it and the Findings and Order did not address it. The W.C.C.A. also points out that the compensability of the different dates of injury did not rely on the same operative facts. The W.C.C.A. noted that it was not reasonable to expect the employee to bring forward evidence for a claim that she was not yet making and that it was not reasonable to expect her to bring evidence or lose the right to refile at a later date given that she was not asserting a claim for that date of injury at the time of the Findings and Order. The employee’s current claims were not actually litigated or decided and therefore her current claims were not barred. The W.C.C.A. reversed and remanded.