LYNN MEYER, Employee/Appellant, v. WAL-MART STORES, INC., and CLAIMS MGMT., INC., Employer-Insurer.

JULY 2, 2014

No. WC14-5675


JURISDICTION - SUBJECT MATTER.  Where the issue raised on appeal is not ripe for review by this court, no justiciable controversy exists and the employee’s appeal is dismissed.


Determined by:  Stofferahn, J., Milun, C.J., and Wilson, J.
Compensation Judge:  James Kohl

Attorneys:  Stephen R. Quanrud and Thomas A. Klint, Midwest Disability, Coon Rapids, MN, for the Appellant.  Jerome D. Feriancek, Thibodeau, Johnson & Feriancek, Duluth, MN, for the Respondents.




The employee appeals a finding of the compensation judge’s decision which the employee argues may bar future claims by reason of res judicata.  Finding no justiciable controversy, the appeal is dismissed.


Lynn Meyer sustained an admitted work injury to her right hand and wrist on May 13, 2006.  She subsequently had a left hand and wrist injury on July 18, 2007.  The employer and insurer paid 3 percent permanent partial disability for each injury.

In July 2012, the employee filed a claim petition, alleging that she was entitled to permanent total disability benefits from June 23, 2010, as the result of the two work injuries.  Ms. Meyer was 45 years old on the date of her second injury and, as a result, needed to establish 17 percent permanent partial disability to meet the threshold set out in Minn. Stat. § 176.101, subd. 5.

At the request of her attorney, Ms. Meyer was evaluated by Dr. Robert Wengler.  Dr. Wengler concluded that the employee had “symptoms strongly suggestive of a thoracic outlet syndrome involving the right upper extremity.”  He related the condition to the 2006 injury and rated the employee as having 15 percent permanent partial disability due to this condition.

Dr. K. Stephen Kazi performed an independent medical examination of the employee on behalf of the employer and insurer.  He was of the opinion that the employee’s primary diagnosis was fibromyalgia and possible thoracic outlet syndrome.  Dr. Kazi also concluded neither of these conditions were related to her employment, and he provided no rating of permanent partial disability.

The employee’s claim was heard by Compensation Judge James Kohl on November 12, 2013, and his findings and order was issued December 27, 2013.  The compensation judge determined that the diagnosis of thoracic outlet syndrome and the rating of permanent partial disability by Dr. Wengler had not been established.  In Finding 14, the compensation judge stated, “[t]he preponderance of the evidence fails to prove that the employee has 15% in ratable permanent partial disability pursuant to Minn. R. 5223.0400, subp. 3(D), as modified by Minn. R. 5223.0400, subp. 5(D)(2).”  In Finding 15 of his decision, the compensation judge stated, “[t]he preponderance of the evidence fails to prove that the employee has been permanently and totally disabled as a result of the work injuries herein since June 23, 2010.”

The employee has not appealed the finding that she did not meet the permanent partial disability threshold, but appeals the finding that she is not permanently totally disabled.


The employee argues on appeal that the compensation judge’s determination that she is not permanently totally disabled is not supported by the findings.  She notes in this regard that all of the findings made by the compensation judge deal only with the permanent partial disability threshold.  The employee contends that in the absence of any findings on the ability of the employee to find and hold employment, it was error for the compensation judge to make a finding that she had failed to establish an eligibility for permanent total disability.  The employee claims that the finding she is not permanently totally disabled may bar future claims because of res judicata.

In response, the employer and insurer state that the employee is seeking an advisory opinion from this court as to the viability of future claims and defenses.  We agree.

There are no claims or defenses presently in dispute between the parties before this court.  The employee has agreed that she has not at this time satisfied the threshold of permanent partial disability necessary to be eligible for permanent total disability benefits.  The question of what, if any, res judicata effect exists as a result of the compensation judge’s decision that she is not permanently totally disabled will not become a justiciable controversy until such time as a new claim for permanent total disability is filed by the employee, the defense of res judicata is raised, the compensation judge hearing the dispute accepts the defense and bars the employee’s claim, and the employee appeals from that decision.

“The existence of a judiciable controversy is prerequisite to adjudication.  The judicial function does not comprehend the giving of advisory opinions.  No controversy is presented, absent a genuine conflict in the tangible interest of opposing litigants.”  Isaak Walton League of Am. Endowment, Inc., v. State, Dep’t of Natural Resources, 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977); Konczal v. Hage Constr. Co., 70 W.C.D. 410 (W.C.C.A. 2009).  The employee’s appeal is dismissed.