JERRY B. DARVELL, Employee/Appellant, v. WHERLEY MOTORS and AMERICAN MUT. INS. CO./MIGA, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 16, 2003

 

HEADNOTES

 

EVIDENCE - RES JUDICATA.  Where the claim for benefits and the issues presented were not identical and it was not clear that the employee=s RSD and the previously litigated thoracic outlet syndrome were identical, the compensation judge erred in applying the principles of res judicata to bar the employee=s claim.

 

PRACTICE & PROCEDURE - REMAND.  The case must be remanded where the compensation judge failed to make any finding of fact as to whether the claimed medical treatment was caused by the employee=s work-related injury.

 

Vacated and remanded.

 

Determined by Johnson, C.J., Rykken, J., and Pederson, J.

Compensation Judge: Patricia J. Milun.

 

Attorneys: James W. Balmer and Matthew P. Bandt, Falsani, Balmer, Peterson & Quinn, Duluth, MN, for the Appellant.  Michael D. Miller and Richard J. Sullivan, McCollum, Crowley, Moschet & Miller, Bloomington, MN, for the Respondent.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s decision that his claims for medical benefits for the treatment of reflex sympathetic dystrophy are barred by the principles of res judicata.  We vacate and remand for reconsideration in accordance with this opinion.

 

BACKGROUND

 

Jerry B. Darvell, the employee, was involved in a work-related car accident on June 5, 1980, while riding home in the backseat of a car after delivering a truck to a client.  The car slid off the road and rolled several times until it came to rest upside down.  The employee remained in the vehicle until he smelled gasoline fumes, then, fearing an explosion, he forced his way out of the car by pushing out the back window.  The employee was treated for injuries that night at a hospital in the area.  The employer subsequently admitted liability for bilateral shoulder and wrist injuries, and paid benefits accordingly. 


Approximately six months to one year after the work injury, the employee began to complain of recurring pain and tingling in his arms.  He continued to experience these symptoms and was eventually diagnosed with carpal tunnel syndrome, for which he underwent carpal tunnel releases in each arm in 1981.  The employee=s symptoms continued, and over the next three years he also began to experience swelling in his forearms.  In 1984, Dr. W. S. Pollard, a neurosurgeon, diagnosed thoracic outlet syndrome and the employee underwent thoracic outlet surgeries on December 6, 1984 and April 21, 1985.  The employee=s symptoms did not abate significantly following this course of treatment.  During this period of time, the employee was also treated by Dr. James Berlin, a family physician, who prescribed medication primarily intended to reduce pain.

 

The employee filed a claim petition in September 1983 alleging neck and back injuries, as well as thoracic outlet syndrome, resulting from his 1980 injury.  In a Findings and Order filed April 16, 1986,[1] Compensation Judge Bonovetz denied the employee any benefits relating to neck and back injuries, but found the employee sustained a 10 percent permanent partial disability to each arm due to his personal injury.  Judge Bonovetz concluded that Aany thoracic outlet syndrome from which the employee may be suffering is totally unrelated to the work injury of June 5, 1980.@  (Finding 18, emphasis added.)

 

On February 25, 1988, Dr. Mark Engasser examined the employee at the request of the employer and insurer.  The employee then complained of bilateral shoulder pain with numbness and tingling in both hands and significant generalized weakness in both arms.  Dr. Engasser diagnosed status-post right Grade I acromioclavicular separation with degenerative changes, left acromioclavicular pain and bilateral carpal tunnel syndrome.  The doctor felt the employee exhibited some findings suggestive of a functional overlay with complaints out of proportion to the doctor=s findings on examination.  On June 7, 1988, Dr. Duane F. Person examined the employee at the request of his attorney.  The employee complained of numbness in his hands, with numbness and tingling in his fingers, swelling in his wrists, blotchiness in his hands and weakness in both arms.  Dr. Person diagnosed continuing severe carpal tunnel syndrome, left and right, with marked paresthesias of the median nerve.  The doctor rated permanent disability of both arms for the carpal tunnel syndrome, causally related to the employee=s personal injury.

 

In 1988, the employee filed a second claim petition seeking temporary total disability benefits for periods of lost work subsequent to the 1984 hearing before Judge Bonovetz.  In a Findings and Order filed September 29, 1988, Judge Bonovetz denied the employee compensation relating to the thoracic outlet surgeries.  In doing so, the compensation judge cited his findings in the 1986 Findings and Order regarding the employee=s thoracic outlet syndrome and found any further claims resulting from thoracic outlet syndrome were barred.  Specifically, Judge Bonovetz found in finding 17, the employee=s inability to work was a direct result of surgery for thoracic outlet syndrome, Aa condition which the court has previously found was not work related.@  (Findings & Order 9/29/88.)

 

Prior to 1989, some physicians treating the employee referenced shoulder/hand syndrome and Areflex sympathetic responses.@  Typically, these terms refer to a disorder now known as reflex sympathetic disorder (RSD).[2]  In 1989, the employee was referred to Dr. Thomas McPartlin, a neurologist, who diagnosed RSD.  The employee was then experiencing the following symptoms:[3]  pain in the lower arm and extending to the fingers, changes in skin color, a heightened sensitivity to changes in temperature in both arms, shiny skin, loss of hair on the arms, random and profuse periods of sweating, and a tingling sensation in the arms that occasionally progressed to a burning sensation.  Dr. McPartlin recommended that the employee undergo a series of stellate ganglion blocks.  The doctor told the employee success of this treatment in reducing the employee=s symptoms would also confirm the diagnosis of RSD.  The employee testified that he underwent this treatment shortly after Dr. McPartlin=s initial diagnosis and that it did improve his condition.  He has received at least one other series of blocks since that time, and testified that this treatment significantly reduced his symptoms.

 

Dr. Person re-examined the employee on July 16, 1998.  The employee reported that since he last saw the doctor in 1988, the employee=s symptoms in his arms had gotten much worse but improved with stellate ganglion blocks.  On examination, the doctor found decreased grip strength, a positive Tinel=s sign on the left, decreased sensation in both arms, tenderness in both wrists, slight swelling and shininess of the skin of the hand.  Dr. Person diagnosed continuing severe residuals of carpal tunnel syndrome, chronic impingement syndrome of both shoulders and resolving reflex sympathetic dystrophy.

 

Dr. Larry Stern examined the employee at the request of the employer and insurer on November 21, 1998.  The employee reported some relief following his carpal tunnel surgery, but told the doctor he eventually had swelling in both arms and bilateral shoulder pain.  He then underwent right- and left-sided thoracic outlet surgery which provided some relief but then began to notice symptoms in both hands, including loss of hair and sensitivity to cold.  The employee stated he underwent a series of ganglion nerve blocks which helped a great deal.  Dr. Stern diagnosed bilateral carpal tunnel releases and a right shoulder joint separation caused by the 1980 personal injury.  The doctor diagnosed developmental reflex sympathetic dystrophy which he opined was clearly related to the employee=s thoracic outlet syndrome and was not, therefore, related to the personal injury.  The doctor opined, however, the RSD was in remission and felt no further medical care would be necessary.  In October 1999, Dr. Stern reviewed additional medical records and provided a supplemental report.  Dr. Stern again noted the diagnosis of reflex sympathetic dystrophy was quite commonly linked to a diagnosis of thoracic outlet obstruction.  The doctor concluded that since the thoracic outlet syndrome was not work-related, the employee=s reflex sympathetic dystrophy was also not work-related.  By report dated August 29, 2000, Dr. Stern again opined the employee=s thoracic outlet syndrome turned into RSD and was not caused by the June 1980 work injury.

 

Dr. Thomas E. Kaiser, an orthopedic surgeon, reviewed certain of the employee=s prior medical records, including those from Dr. Pollard, Dr. Robert Tygart, the International Falls Clinic, and Dr. Chris Tountas.  By report dated May 19, 2002, Dr. Kaiser concluded the employee was clearly having symptoms of numbness, tingling, swelling and a cold feeling in both arms and was having shoulder problems from instability dating back to the time of the 1980 accident.  The doctor stated the medical records demonstrated the employee was having sympathetic dystrophy symptoms definitely present in 1983, prior to seeing Dr. Tygart, and prior to the first rib resection.  Based upon the records, the doctor concluded the employee=s sympathetic dystrophy problems pre-dated his thoracic outlet surgery.  Further, Dr. Kaiser related the employee=s RSD condition and the need for treatment to the 1980 personal injury.

 

The employee filed a medical request seeking payment for medical treatment received for RSD.  A hearing was held on May 8, 2003, before Compensation Judge Patricia Milun.  In a Findings and Order filed June 9, 2003, the compensation judge found the employee Ahad a group of symptoms which are consistent with both the diagnosis of thoracic outlet syndrome and reflex sympathetic dystrophy.  In 1986 and 1988, Judge Bonovetz found these symptoms to be thoracic outlet syndrome and found they were not related to his work injury.@  (Finding 1.)  The judge further found that Ait cannot be determined when reflex sympathetic dystrophy started.@  (Finding 2.)  Based on this statement, Judge Milun made two alternative findings:

 

3. If the reflex sympathetic dystrophy was actually occurring after the work injury but before the diagnosis of thoracic outlet syndrome then Judge Bonovetz=s finding that the collection of symptoms was not work related is a finding that the reflex sympathetic dystrophy is not compensable.

 

4. If the reflex sympathetic dystrophy arose later, it arose out of the thoracic outlet obstruction and it is not work related because Judge Bonovetz found that the thoracic outlet syndrome was not work-related.

 

Accordingly, the compensation judge denied the employee=s claim.

 

DECISION

 

The employee argues that Judge Milun=s application of res judicata was erroneous as a matter of law because the condition litigated before Judge Milun (RSD) was not identical to the condition litigated before Judge Bonovetz (thoracic outlet syndrome).  Citing Kenow v. The King Co., slip op. (W.C.C.A. Aug. 20, 1997), the employee argues that since his current claim is based upon a different diagnosis, the claim is not barred by the principles of res judicata.  The employer responds that the issue of whether the employee=s current claim was for the treatment of the same complex of symptoms as those at issue before Judge Bonovetz is a question of fact.  The respondent asserts Judge Milun=s findings that the symptoms are the same are supported by substantial evidence.  Accordingly, the respondents contend, Compensation Judge Milun=s application of res judicata was legally correct.

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether the compensation judge=s factual findings are Aclearly erroneous and unsupported by substantial evidence.@  Minn. Stat. ' 176.421, subd. 1 (1992).  If supported by substantial evidence, the judge=s findings must be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  Here, the compensation judge made no finding of fact as to whether the claimed medical treatment was caused by the employee=s personal injury.  Rather, the compensation judge found that Ait cannot be determined when reflex sympathetic dystrophy started.@  (Finding 2.)  The compensation judge then expressed two mutually exclusive hypothetical conclusions.  (Findings 3 and 4.)   These are not findings of fact.  The function of a compensation judge is to review the evidence and make factual findings.  Minn. Stat. ' 176.371.  Stating that an issue cannot be determined and drawing hypothetical conclusions does not fulfill this function.

 

The employee appealed the compensation judge=s finding that his claim  is barred by the principles of res judicata.  This court has previously held that the principles of res judicata are applicable in worker=s compensation proceedings.  Abrahams v. University of Minn.,Duluth, 61 W.C.D.  103 (W.C.C.A. 2001).  The doctrine precludes litigation of issues and claims that were in fact decided in an earlier decision. Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993); Westendorf v. Campbell Soup, 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976).

 

Collateral estoppel is a limited form of res judicata whereby a prior judgment is conclusive in a later suit between the same parties as to determinative issues finally decided in the former suit.  Travelers Ins. Co. v. Thompson, 163 N.W.2d 289 (Minn. 1969).  The Minnesota Supreme Court has held that the principles of collateral estoppel are appropriately applied in the following circumstances:  (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and 4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.  Nelson v. American Family Ins. Group, 651 N.W.2d 499, 511 (Minn. 2002), Willems v. Commissioner of Pub. Safety, 333 N.W.2d 619, 621 (Minn. 1983).  The court has also held that Aneither collateral estoppel nor res judicata is rigidly applied,@ and that the focus is on Awhether its application would work an injustice on the party against whom estoppel is urged.@  Johnson v. Consolidated Freightways, 420 N.W.2d 608, 613-614 (Minn. 1988).

 

As a general proposition, an employer is required to provide all medical treatment reasonably necessary to cure and relieve the employee from the effects of a work-related injury.  Minn. Stat. ' 167.135 (2002).  The issue in the case before Judge Milun was whether the stellate ganglion blocks that the employee received were causally related to the 1980 personal injury.  That issue was not before Judge Bonovetz in either of the prior hearings.

 

Additionally, the symptoms of thoracic outlet syndrome and RSD are not precisely the same, although there may be overlap between the two.  Symptoms of thoracic outlet syndrome include ischemia, paresthesias, numbness, weakness of the affected arm, and Raynaud=s phenomenon.  Dorland's Illustrated Medical Dictionary, 1769 (29th ed. 2000).  If there is a compressed nerve as a result of the thoracic outlet obstruction, an affected individual may also experience atrophy and weakness of the muscles of the hand and/or forearm, as well as pain and sensory disturbances.  Id.  By contrast, symptoms of RSD include pallor or rubor, pain, sweating and edema.  Dorland's Illustrated Medical Dictionary, 560 (29th ed. 2000).  Dr. Hubbard identified additional symptoms of RSD, including swelling and discoloration of the extremity, differences in temperature pattern and hair distribution and allodynia (extreme pain caused by gentle touch).  It is less than clear that the two conditions are identical, as would be required for collateral estoppel to apply.[4]

 

Finally, the Minnesota Supreme Court has suggested that in workers= compensation cases, principles of res judicata primarily govern with respect to the periods of benefits at issue.  Lindberg v. J & D Enterprises, 543 N.W.2d 90, 90 (1996).  In this case, the employee=s claim is for medical expenses incurred subsequent to Judge Bonovetz=s Findings and Order of September 29, 1988.  Collateral estoppel generally does not bar a new claim pertaining to medical treatment received in a subsequent benefit period.

 

Res judicata is an equitable doctrine that must be applied in light of the facts of the individual case.  AFSCME Council 96 v. Arrowhead Regional Corrections Bd., 356 N.W.2d 295 (Minn. 1984).  The employee has been denied an adjudication on the merits regarding the causal connection between the June 5, 1980 accident and the treatment he has received for RSD.  We conclude the compensation judge=s application of collateral estoppel does work an injustice upon the employee.  See Johnson  at 613-14.  We therefore vacate the compensation judge=s findings and remand the case for new findings based upon the existing record.

 

 



[1] The case was first tried in November 1984.  A second trial on October 21, 1985 was necessary because the record from the first hearing was lost.  The record stayed open thereafter until February 25, 1986.

[2] RSD has more recently been termed "complex regional pain disorder."  Dr. Hubbard, a neurologist to whom the employee was referred, testified that RSD has undergone several terminological changes since the late 19th century.  Dr. Berlin, the employee's treating physician testified that the state of the art regarding the diagnosis and treatment of RSD has improved considerably since the time the employee began to suffer the complex of symptoms that was initially determined to be carpal tunnel syndrome, then diagnosed as thoracic outlet syndrome.

[3] These symptoms were observed by Dr. McPartlin during his March 10, 1989 examination of the employee.  Dr. Berlin also documented these symptoms at approximately the same time.

[4] Dr. Jack Hubbard testified that he did not believe the employee ever suffered from thoracic outlet syndrome.  Dr. Hubbard noted that the employee had described symptoms that were limited to the first three fingers on his hand, where as "[m]ost descriptions of thoracic outlet syndrome really relate the numbness and tingling to the last two digits of the hand."  (Resp. Ex. 2, 16-17.)