DONALD E. PUBLICOVER, Employee/Appellant, v. VOLTELCON and HARTFORD SPECIALTY RISK SERVICES, Employer-Insurer.

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 12, 2004

HEADNOTES

EVIDENCE - RES JUDICATA; PRACTICE & PROCEDURE - DISMISSAL; TEMPORARY BENEFITS - FULLY RECOVERED.  Where the judge had denied the employee=s rehabilitation request on grounds that the employee=s injury had been temporary and had not disabled the employee from work, the compensation judge did not err as a matter of law in dismissing the employee=s claim petition for ongoing temporary benefits based on the doctrine of collateral estoppel.

VACATION OF AWARD - NEWLY DISCOVERED EVIDENCE.  Where none of the items offered by the employee as newly discovered evidence had any bearing on either of the orders at issue, the employee did not show good cause to vacate two orders of a compensation judge dismissing the employee=s claim petition on grounds of collateral estoppel in light of a ruling on a rehabilitation request filed shortly after the employee=s claim petition.

Affirmed.

Petition to vacate denied.

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

Compensation Judge: James R. Otto

Attorneys: John O. Murrin, Murrin - Milo, Edina, MN, for the Appellant.  John H. Guthmann, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.

OPINION

WILLIAM R. PEDERSON, Judge

The employee appeals from two orders of the compensation judge dismissing with prejudice his claim petition filed December 27, 2001, and, in the alternative, he petitions to vacate those orders.  We affirm the judge=s orders, and we deny the Petition to Vacate.

BACKGROUND^[1]

On July 7, 2000, Donald Publicover [the employee] sustained an injury to his left ankle while employed as a cable TV lineman by Voltelcon [the employer].  On December 27, 2001, the employee filed a claim petition for unspecified workers= compensation benefits beginning October 1, 2001, causally related to the work injury of July 7, 2000.  In its answer filed January 22, 2002, the employer admitted a temporary ankle sprain on July 7, 2000, but denied liability for any disability or consequent medical expenses claimed by the employee.  On January 30, 2002, the employee filed also a rehabilitation request for a rehabilitation consultation and services.  Following an administrative conference, an arbitrator concluded that the employee=s work injury of July 7, 2000, was a substantial contributing factor in the employee=s need for the rehabilitation services, and the employer and insurer filed a request for formal hearing.

The matter of the employee=s entitlement to rehabilitation services came on for formal hearing before Compensation Judge James R. Otto on June 5, 2002.  The essential issues before the judge were the nature of the employee=s injury of July 7, 2000, and whether that injury was a substantial contributing factor in any current need of the employee for rehabilitation services.  In a Findings and Order issued June 20, 2002, the compensation judge concluded that the employee=s injury of July 7, 2000, was a mild left ankle strain/sprain that fully resolved shortly after it occurred.  Consequently, the judge denied the employee=s claims for rehabilitation benefits for lack of a causal relationship between the employee=s injury of July 7, 2000, and his subsequent left foot problems.

The employee appealed from the judge=s decision, and on March 21, 2003, a panel of this court vacated the judge=s Findings and Order and remanded the matter for redetermination after consideration of a hearing exhibit that had been inadvertently removed by one of the parties and not considered by the judge before he issued his decision on June 20, 2002.

On May 5, 2003, the compensation judge, after reconsideration of the complete record, including the heretofore missing exhibit, issued his Findings and Order After Reconsideration, again denying the employee=s claims for rehabilitation benefits based upon a lack of medical causation between the work injury and the employee=s subsequent problems.

On May 8, 2003, the Office of Administrative Hearings issued a Notice of Pretrial on Claim Petition, scheduling a pretrial conference for July 7, 2003, on the employee=s claim petition that was filed on December 27, 2001.  About a month later, on June 10, 2003, and after expiration of the appeal deadline from the Findings and Order After Reconsideration, the employer and insurer filed a motion to dismiss the employee=s claim petition, based upon the collateral estoppel effect of the unappealed Findings and Order After Reconsideration.

On June 16, 2003, concluding that his Findings and Order of May 5, 2003, was Adispositive of the employee=s claim,@ the judge issued an Order Dismissing Claim Petition With Prejudice.  In his order, the judge stated that A[t]he employee is collaterally estopped from relitigating his claim that the work injury caused more than a temporary injury that fully resolved.@  Two days later, the employee filed with the Office of Administrative Hearings a motion to vacate the judge=s June 16, 2003, order on grounds that he had had insufficient time to respond to the employer and insurer=s June 10, 2003, motion to dismiss.  On June 23, 2003, the compensation judge issued a Second Order Dismissing Claim Petition With Prejudice and Order Striking Pretrial, again concluding that all issues set forth in the employee=s claim petition had been resolved by the Findings and Order on Remand issued May 5, 2003.  In a memorandum accompanying his order, the compensation judge explained that

[t]his second order is intended to clarify for the Workers= Compensation Court of Appeals that the Order for Pretrial that was served on May 8, 2003, was routinely served on all necessary parties in the belief that issues remained that require a hearing.  My prior Findings and Order on Remand resolved all issues set forth in the Claim Petition.

The employee appeals from the judge=s June 16 and 23, 2003, orders and, in the alternative, petitions to vacate them.

DECISION

The essential issue before this court is whether the compensation judge, in light of his Findings and Order of May 5, 2003, properly applied the doctrine of collateral estoppel to preclude relitigation of issues first raised in the employee=s claim petition filed in December of 2001 but subsequently resolved in the judge=s various orders stemming from the employee=s January 2002 Rehabilitation Request.  The employee contends that the mere denial of rehabilitation benefits following a hearing on that limited issue should not bar the employee=s right to proceed on his claims for temporary total, temporary partial, permanent total, and permanent partial disability benefits, especially where the Findings and Order on Remand did not deal with the benefit claims raised by the claim petition or set forth the date on which the employee=s temporary injury ended.  We are not persuaded.

The employer and insurer=s defense to the employee=s claim for rehabilitation benefits was that the employee=s condition after September 2001, was medically unrelated to the July 7, 2000, work injury.  In his Findings and Order on Remand issued May 5, 2003, the compensation judge concluded that the employee=s July 7, 2000, injury was temporary in nature and had Afully resolved shortly thereafter.@  The judge very clearly determined that the employee=s left foot problems in 2001 were not causally related to the work injury.  The employee chose not to appeal from the compensation judge=s decision, and this court lacks jurisdiction to consider the merits of the May 5, 2003, Findings and Order.  Bjerga v. Maislin Transport, 400 N.W.2d 99, 39 W.C.D. 309 (Minn. 1987); Hemmesch v. Molitor, 328 N.W.2d 445, 35 W.C.D. 541 (Minn. 1983).

This court has previously held that the principles of the doctrine of res judicata are applicable in workers= compensation proceedings.  Abrahams v. University of Minn., Duluth, 61 W.C.D. 103 (W.C.C.A. 2001).  The res judicata doctrine precludes relitigation of issues and claims that were in fact decided in an earlier decision in the same cause of action.  Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993); Westendorf v. Campbell Soup, 309 Minn. 550, 243 N.W.2d 157, 28 W.C.D. 460 (1976).  Collateral estoppel, a subset of the res judicata doctrine, precludes relitigation of issues that were actually litigated, determined by, and necessary to the determination of a previous judgment, regardless of whether the previous suit was on the same cause of action.  Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978); McBroom v. Al-Chroma, Inc., 386 N.W.2d 369, 372-73 (Minn. App. 1986).  In the present case, the employer and insurer interposed the same defense to both the claim petition and the rehabilitation request.  That was, that the employee=s condition after September 2001 was medically unrelated to the employee=s work injury of July 7, 2000.  In his orders of June 16 and 23, 2003, the compensation judge concluded that his medical causation determination in his May 5, 2003, Findings and Order was Adispositive of the employee=s claim.@  The employee has offered no legal basis for his contention that the doctrine of collateral estoppel is inapplicable to this case.  Concluding that the dispositive issue of medical causation has already been litigated in this case, we affirm the judge=s orders for dismissal with prejudice filed June 16, and 23, 2003.

As part of his brief on appeal, and apparently in the alternative, the employee asserts that this court should set aside the orders for dismissal at issue Afor cause@ under Minn. Stat. ' 176.461, Abased on a number of reasons including newly discovered evidence@ and Athe fact that Employee[] has not been granted the opportunity of presenting all facts, nor an opportunity to respond to any Discovery Demand of the Insurer/Employer or submit answers to a Discovery Demand to Insurer/Employer or present said information at full and complete hearing on a Claim Petition.@  This latter Afact@ does not fit among those grounds identified by statute as proper bases for vacating a settled decision.^[2]  Moreover, none of the three items offered by the employee as newly discovered evidence--a September 3, 2002, medical report of pain specialist Dr. Lon Lutz, a June 11, 2003, AStatement of Disability: Return to Work@ form, and a June 11, 2003, referral for physical therapyBhas any bearing on either of the two applications of collateral estoppel that the employee here petitions to vacate.  Even if they did somehow bear on those two legal conclusions, which we have here affirmed, we fail to see how vacation at this point would result in anything but another motion for dismissal and a conclusion by the judge identical in its result to those that he has reached twice already in the past.  Therefore, finding insufficient good cause to do otherwise, we deny the employee=s petition to vacate the decisions at issue.