CARRIE L. BUSCH, Employee/Appellant, v. WAL MART, and CLAIMS MGMT., INC., Employer-Insurer, and MAYO FOUND., MANKATO CLINIC, INC., MANKATO CHIROPRACTIC CTR., MANKATO ANESTHESIA ASSOCS., LTD., WAL MART CLAIMS ADMIN. and ORTHOPAEDIC & FRACTURE CLINIC, P.A., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 22, 2005

 

No. WC05-224

 

HEADNOTES

 

EVIDENCE - RES JUDICATA; PRACTICE & PROCEDURE - DISMISSAL.  The compensation judge erred by concluding that the employee=s April 18, 2002, Gillette injury claim was barred by previous proceedings regarding an October 12, 2001, claim, and the judge also erred by concluding, in the context of a motion to dismiss, that the medical report attached to the claim petition was inadequate when the report on its face supported the conclusion that the employee had sustained a Gillette injury culminating on April 18, 2002.

 

Vacated.

 

Determined by: Wilson, J., Johnson, C.J., and Pederson, J.

Compensation Judge: Carol Eckersen

 

Attorneys:  Philip R. Reitan, Reitan Law Office, Mankato, MN, for the Appellant.  Andrew A. Willaert, Gislason & Hunter, Mankato, MN, for the Respondents.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s order dismissing her claim petition on grounds of res judicata.  We vacate the judge=s order.

 

BACKGROUND

 

This matter previously came on for hearing before Judge Carol Eckersen in September of 2003.  At that time, the employee was claiming various benefits related to either a specific or a Gillette-type back injury^[1] allegedly occurring on or about October 12, 2001.  In a decision issued on November 25, 2003, Judge Eckersen determined that the employee had sustained a specific as well as a Gillette injury on October 12, 2001, but the judge also concluded that the employee had not given timely notice of injury as required by Minn. Stat. ' 176.141.  Accordingly, the judge denied the employee=s claims.  On appeal, a panel of this court affirmed the judge=s decision as to notice.  Busch v. Wal Mart, slip op. (W.C.C.A. June 9, 2004).

 

In January of 2005, the employee filed a new claim petition, alleging entitlement to certain benefits as a result of an injury allegedly occurring on April 18, 2002.  Attached to the claim petition was a report dated December 14, 2004, by Dr. R. Wynn Kearney, the employee=s treating physician.  In this report, Dr. Kearney indicated that the employee had sustained a Gillette injury as of April 18, 2002, the date work restrictions were recommended.

 

In response to the employee=s claim petition, the employer and insurer denied liability, alleging in part that the employee=s claim petition should be dismissed because the claimed injury Ahas already been litigated,@ in the prior proceedings, and because the most recent claim was merely an attempt to circumvent the earlier denial of benefits on notice grounds.  Subsequently, the employer and insurer filed a motion to dismiss, alleging that the previous decisions by Judge Eckersen and the Workers= Compensation Court of Appeals were res judicata as to the employee=s claims.

 

In an order issued on June 23, 2005, Compensation Judge John Ellefson granted the employer and insurer=s motion, without hearing, dismissing the employee=s claim petition.  The employee appeals.

 

STANDARD OF REVIEW

 

A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

In his December 14, 2004, report, Dr. Kearney wrote, in part, as follows:

 

This individual is seen in an attorney conference with her attorney, Mr. Phil Reitan.  We reviewed her past history, the circumstances regarding her injury and the fact that this does constitute a Gillette injury with multiple small injuries occurring during the course of her employment.  The specific initial date of 10/12/01 had been previously listed as the date of her injury.  This was the battery lifting incident.  She saw a chiropractor that day.  Subsequently, she was seen on quite a number of occasions in our office and ultimately her condition required surgery.

 

*  *  *

 

As we reviewed the record and as we reviewed the situation here, 4/18/02 appears to be the date that the cumulative effect of the Gillette injury culminated in a need for restrictions at work and a change of work duties.  This is confirmed by review of the Report of Work Activity form completed on that date.

 

We also discussed Ms. Busch=s present condition.  Her condition is stable and has not changed either for better or for worse over the last several months.  She was last seen here for a patient visit on 7/22/04.

 

Therefore, it is my conclusion that this individual experienced a Gillette type injury.  There was a battery lifting incident on 10/12/01, but this did not require that her duties be changed or that she be subject to restrictions until 4/18/02, when it is my opinion that the injury culminated and at that time she required a change of duties because of her condition.  It was also at that time that significant restrictions at work were imposed as well.

 

The employee attached this report to her January 2005 claim petition.  In dismissing that claim petition in response to the employer and insurer=s motion, Judge Ellefson explained as follows:

 

Andrew [A.] Willaert, the attorney for the employer and insurer, filed a Motion for Dismissal of Employee=s Claim Petition on February 25, 2005.  In the Motion for Dismissal of Employee=s Claim Petition on February 25, 2005.  In the Motion he alleged that the Gillett-type injury which was the subject of the claim petition had previously been found by Judge Eckersen to have culminated on October 12, 2001 and that for that injury, Judge Eckersen had found that the employee had failed to timely notify the employer of her injury and therefore was not entitled to receive benefits.

 

Philip R. Reitan, the attorney for the employee, argued in his Response to the Motion that the Court had never considered the issue of whether the employee=s work activities between October 12, 2001 and April 18, 2002 caused an injury to the employee.

 

The Compensation Judge find[s] that Judge Eckersen found that the employee had incurred a Gillette-type injury to her low back that culminated on October 12, 2001.  The Compensation Judge finds that the Gillette-type injury that Dr. Kearney refers to in the letter that was filed with the Claim Petition is the same injury that Judge Eckersen was referring to in her Findings and Order.  The doctrine of res judicata prevents the re-litigation of the same issue of when that Gillette-type injury culminated.

 

While attorney Reitan contends that the employee may have incurred a second Gillette-type injury as a result of work activities after October 12, 2001, he was supplied no medical support for such a second injury.  To do so it would be necessary to provide a medical opinion that the employee=s low back condition had substantially worsened between October 12, 2001 and April 18, 2002 and that the worsening had been caused by the employee=s work activities.  Dr. Kearney=s letter did not express such an opinion.

 

The employee appeals, contending that Judge Ellefson erred in dismissing the claim petition on res judicata grounds, in that the issue of whether the employee had sustained a Gillette injury on April 18, 2002, had never been litigated or decided in the prior proceedings.  In response, the employer and insurer argue that the compensation judge correctly dismissed the claim petition, because res judicata applies not only to Aall claims actually litigated, but to all claims that could have been litigated in the earlier action.@  (Emphasis added).^[2]  After review of the pleadings and applicable law, we conclude that the compensation judge erred in dismissing the employee=s claim petition.

 

Principles of res judicata are applicable in workers= compensation proceedings.  See e.g., Alexander v. Kenneth R. LaLonde Enters., 288 N.W.2d 18, 31 W.C.D. 407 (Minn. 1980).  However, contrary to the employer and insurer=s argument, it is well-settled that res judicata applies in workers= compensation cases only with respect to issues actually litigated and decided.  See, e.g., Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993), citing 3 Larson, The Law of Workmen=s Compensation' 79.72(f)(1992) (Ares judicata does not apply if the issue at stake was not specifically decided in the prior proceeding@); Westendorf v. Campbell Soup Co., 243 N.W.2d 157, 158, 28 W.C.D. 460, 460 (Minn. 1976).  In the present case, we find no support whatsoever for the employer and insurer=s contention that the prior proceedings established that Athe only date of injury following from the employee=s work activity at [the employer] was on October 12, 2001.@  (Emphasis added).  Rather, it appears that the prior claim was based soley on an alleged October 12, 2001, Gillette injury, and the rights and liabilities of the parties were determined only with respect to that claimed culmination date.^[3]

 

We further conclude that Judge Ellefson erred to the extent that he based his dismissal on a perceived lack of medical support for the employee=s claim.  Contrary to Judge Ellefson=s reasoning, the employee has no responsibility to submit evidence that her condition had Asubstantially worsened between October 12, 2001, and April 18, 2002.@  Rather, the issue is whether the employee=s work activities between October 12, 2001, and April 18, 2002, substantially contributed to her subsequent disability and need for treatment.

 

Dr. Kearney=s December 14, 2004, report is adequate on its face to support the employee=s April 18, 2002, Gillette injury claim.  That is, a reasonable fact finder could conclude, based on this report, that a work injury had occurred Aculminating@ on April 18, 2002, and that this injury had substantially contributed to the employee=s disability.  By Afinding@ the injury referred to in Dr. Kearney=s report to be Athe same injury that Judge Eckersen was referring to in her [previous] Findings and Order,@ Judge Ellefson was making a factual determination that was inappropriate in the context of the employer and insurer=s motion to dismiss, especially in that no hearing on the motion was held.  In essence, Judge Ellefson was simply not persuaded that Dr. Kearney in fact meant what he said - - that April 18, 2002, was Athe date that the cumulative effects of the Gillette injury culminated.@  This kind of factual determination should only be made following an evidentiary hearing on the merits of the employee=s claim.

 

The employee=s claim for a Gillette injury culminating on April 18, 2002, is not barred by the doctrine of res judicata.  The fact that the claim could have been litigated at the hearing before Judge Eckersen is irrelevant, because the claim was not actually litigated or decided at that time.  For this reason, and because Judge Ellefson erred by finding Dr. Kearney=s report insufficient to support the employee=s claim, we vacate the order dismissing the employee=s claim petition.^[4]