LORI ZABEL, Employee/Appellant, v. GUSTAVUS ADOLPHUS COLLEGE and TRAVELERS GROUP, Employer-Insurer/Respondents, and MAYO CLINIC, ST. PAUL ELECTRICAL WORKERS’ HEALTH CARE PLAN, and RIVERVIEW CLINIC, Intervenors.

The employee appeals from the compensation judge’s order dismissing her claim petition with prejudice on the grounds of res judicata. We reverse the judge’s order.

While employed as a post office clerk for the employer, Gustavus Adolphus College, on April 18, 2013, the employee, Lori Zabel, slipped and fell on ice, suffering a brain/concussion injury as a result of striking the back of her head. The injury was admitted and benefits were paid. Arguing the employee’s injury was temporary and had resolved, the employer and insurer ceased paying wage loss benefits. The employee’s objection to the discontinuance was heard by a compensation judge on March 7, 2017. By Findings and Order dated April 25, 2017, the judge found “the employee’s symptoms relative to her brain/concussion injury of April 18, 2013 were temporary in nature and fully resolved as of May 19, 2014,” and denied the employee’s claim for temporary total disability benefits from August 2, 2016, through the date of the hearing. (April 25, 2017, Findings and Order at Finding 24.) This Findings and Order was not appealed.

In his 2017 Findings and Order, the compensation judge described medical treatment the employee received on July 13, 2015. On that date, the employee presented at the Mayo Clinic emergency room reporting symptoms of nausea and vertigo since having had a concussion one year ago. She was diagnosed with migraine headache and vertigo. (Id. at Finding 9.) In a later finding, the judge described treatment received on July 31, 2015, where the employee complained of a headache starting on July 13, 2015, when she “[g]ot sick, lost [her] balance and ran into a wall.” (Id. at Finding 10.) The findings also state that the employee denied a new injury in July 2015. (Id. at Finding 22.)

In February 2018, the employee filed a claim petition seeking benefits related to a traumatic brain injury sustained at work on July 13, 2015.^[1] According to an August 15, 2017, narrative report of Jessica Alm, D.O., on July 13, 2015, the employee experienced a “zinger” and dizziness while sorting mail at work, lost her balance, and fell into a wall. It was Dr. Alm’s opinion that this July 13, 2015, fall at work, and the fact that the employee’s symptoms from the 2013 injury had intensified in July 2015, are substantial contributing factors to her current persistent post-concussive syndrome.

The employer and insurer moved to dismiss the employee’s February 2018 claim petition, arguing the 2017 Findings and Order had a res judicata effect to bar her current claims. The employee filed an objection and a telephone special term conference was held before the compensation judge. No recording was made, no record of the proceeding was kept, and no evidence was admitted. The parties submitted letter briefs following the conference.

In his Order Granting Motion to Dismiss, and Order Dismissing Claim Petition with Prejudice, the compensation judge agreed with the employer and insurer that the employee could have and should have claimed the July 13, 2015, date of injury at the time of the 2017 hearing, and because she failed to do so, the unappealed findings that resulted from that hearing bar her current claims under the doctrine of res judicata. The judge dismissed the employee’s claim petition with prejudice. The employee appeals.

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.^[2]

The employee alleges the compensation judge erred in dismissing her claim petition with prejudice on res judicata grounds, because the issue of whether she sustained a compensable work injury on July 13, 2015, was not litigated or decided in 2017. The employer and insurer argue that the dismissal was appropriate pursuant to Schuette v. City of Hutchinson,^[3] because the employee could have and should have brought her claim in the earlier proceeding. We are not persuaded by the employer and insurer’s argument. We conclude, based on the pleadings and law, that the judge erred by unconditionally dismissing all claims on the merits without adjudication.

The supreme court has held that the doctrine of res judicata may apply in workers’ compensation cases.^[4] This doctrine brings finality to legal proceedings in which “a final judgment on the merits bars a second suit for the same claim” by the same parties.^[5] Res judicata applies in workers’ compensation cases only with respect to issues actually litigated and decided.^[6] The test to determine whether an action is precluded is to determine “whether the same evidence will sustain both actions.”^[7] The doctrine is not to be applied rigidly and the focus is “whether its application would work an injustice on the party against whom estoppel is urged.”^[8]

In Schuette, this court considered the employee’s appeal of a dismissal of his claim petition on the basis of res judicata. The employee had, years prior, asserted a claim based upon two dates of injury; a June 23, 2005, PTSD injury, and a consequential November 12, 2008, orthopedic injury. In a 2012 Findings and Order, the compensation judge denied the employee’s claimed 2005 PTSD injury according to the law applicable at that time, and did not, therefore, address the employee’s claimed 2008 consequential injury. This court affirmed the denial, as did the supreme court on appeal.^[9]

Years later, the employee filed a subsequent claim petition seeking benefits as a result of the 2008 orthopedic injury, alleging the injury was compensable as the physical manifestation of his 2005 PTSD injury. The employer and insurer moved to dismiss the employee’s subsequent claim on the basis of res judicata, and a compensation judge agreed. On appeal to this court, the employee argued that the issue of the compensability of the 2008 injury was not specifically decided in 2012. In affirming the dismissal, we reasoned that the compensability of the 2008 injury was at issue at the 2012 hearing, that the claim was ripe in 2012, and that the employee’s current claim was based on the same operative facts and evidence as was presented to the judge in 2012. The employee could have brought his subsequent claim in the first proceeding but pursued a different legal theory. Under such circumstances, we concluded his subsequent claim was barred by res judicata.

In this case, the employer and insurer argued to the compensation judge that our holding in Schuette requires dismissal of the employee’s current claim that she sustained a compensable work injury in July 2015. The compensation judge agreed, concluding that the employee could have and should have brought her current claim in the 2017 proceeding, and as such, her current claim is barred by res judicata.

The employee urges that the 2017 decision bars only those claims related to the asserted and litigated 2013 date of injury, and that her current claim relates to a new and distinct claim for a different injury that has yet to be adjudicated. The employee asserts that Schuette is distinguishable from this case, as Schuette involved different legal theories for the compensability of the same two injuries, while this case presents a situation involving two different injuries. She argues that the compensability of the 2015 claimed injury was not alleged at the 2017 hearing, that evidence and argument were not presented to support such a claim, that the defense did not address it, and that the 2017 Findings and Order determined claims relating only to the 2013 injury. Unlike Schuette, the employee’s current claims regarding the 2015 injury are not presented as an alternative legal theory for compensability of her 2013 injury.

We agree with the employee that Schuette is distinguishable from the facts of this case. The 2015 injury was not alleged by the employee at the time of the 2017 hearing. Proving the compensability of the 2013 and 2015 injuries does not rely upon the same operative facts. While the compensation judge reasoned that Dr. Alm’s report could have been obtained prior to the 2017 hearing and could have been available to the employee at that time, it is not reasonable to have expected her to obtain such a report or lose the right to refile at a later date given she was not asserting a claim for the 2015 date of injury at that time. The possibility of bringing the later claim is not a sufficient basis for granting the motion to dismiss with prejudice. As we noted above, the compensability of the 2015 injury was not at issue, nor was it adjudicated on the merits, in 2017. The employee’s current claims were not actually litigated or decided, regardless of whether they could have been.^[10] The 2017 Findings and Order, therefore, does not bar the employee’s current claims. Furthermore, to dismiss the employee’s claims with prejudice in this manner, in particular without the benefit of a full evidentiary hearing on the record, results in an injustice to the employee.^[11]

Because the judge erred in dismissing the claim petition, we reverse and remand the matter to the Office of Administrative Hearings for placement of the employee’s claim petition on the trial calendar.