EVIDENCE – RES JUDICATA. Where approval of SI joint injections was not at issue in a prior adjudication, neither claim preclusion nor issue preclusion applies to bar the employee’s current claim.
MEDICAL TREATMENT AND EXPENSE – SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s award of recommended SI joint injections.
INTERVENTION; APPEALS; PRACTICE & PROCEDURE. Where the intervenors had not been served with the notice of appeal or the appellants’ brief, this court will not modify a compensation judge’s appealed award of payment to the intervenors.
Compensation Judge: Stacy P. Bouman
Attorneys: David W. Blaeser, Woodbury, Minnesota, for the Respondent. Emily A. LaCourse and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
SEAN M. QUINN, Judge
The employer and insurer appeal from the compensation judge’s approval of the employee’s recommended bilateral sacroiliac (SI) joint injections and from her award of intervention claims asserted by two medical providers. We affirm.
The employee, Molly Rhyner, alleged a February 7, 2011, injury to her low back arising out of her employment with Mattress Giant, the employer. An MRI revealed degenerative disc disease at L4-5 and a disc herniation at L5-S1, and an injection identified the SI joint as an additional pain generator. The employee’s treating physician, Dr. Stefano Sinicropi of Midwest Spine & Brain Institute, recommended chiropractic care for the SI joints, and later recommended disc replacement surgery at the L5-S1 level. The employer and its insurer asserted the employee did not suffer an injury to her low back, relying on the medical opinion of their expert, Dr. Charles Burton.
The employee sought various workers’ compensation benefits in connection with her alleged injury, including approval of the recommended surgery. In 2012, her claim was heard by Compensation Judge Jane Ertl. By a Findings and Order dated April 13, 2012, Judge Ertl found that the nature and extent of the injury was an L5-S1 disc herniation. Judge Ertl approved the recommended disc replacement surgery and awarded all claimed medical treatment to the low back, including the SI joint injection and the chiropractic care to the SI joints. The 2012 Findings and Order was not appealed.
The employee underwent the recommended disc replacement surgery, but continued to be symptomatic. On March 4, 2016, Dr. Sinicropi’s physician assistant, Jacob Guth, P.A., recommended bilateral SI joint injections for both diagnostic and therapeutic reasons.
The employer and insurer denied payment for the recommended injections, and the issue was ultimately heard by Compensation Judge Stacy Bouman on October 18, 2018. The employer and insurer asserted that the 2012 Findings and Order established the nature and extent of the employee’s injury was limited to the L5-S1 disc herniation, and that because Judge Ertl could have, but did not, find an injury at L4-5, the SI joints, or to the low back generally, the 2012 Findings and Order had res judicata effect with respect to the employee’s current claim for treatment to the SI joints. In the alternative, the employer and insurer asserted the 2016 recommendation for the injections was stale and was not reasonable and necessary treatment. The employee argued the doctrine of res judicata did not apply because at issue in 2012 was whether the employee suffered a low back injury, not which vertebral level was injured, and if there was a low back injury, whether the recommended L5-S1 disc replacement surgery was compensable. Neither the hearing transcript nor the exhibits from the 2012 hearing were offered into evidence at the 2018 hearing.
By a Findings and Order dated November 30, 2018, Judge Bouman determined the doctrine of res judicata did not apply. She ordered the employer and insurer to pay for the employee’s recommended SI joint injections, and awarded intervention claims asserted by two medical providers. The employer and insurer appeal.
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
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).
The employer and insurer assert three arguments on appeal. First, they argue the doctrine of res judicata bars any award to the employee for medical benefits for any body part other than the L5-S1 disc level. Second, they argue substantial evidence does not support the award of SI joint injections. Third, they argue the compensation judge erred as a matter of law in awarding the claims of the two intervenors. We affirm.
The compensation judge, and the employer and insurer on appeal, refer to the doctrine of res judicata. The term res judicata is often used interchangeably to refer to two different, although related, legal doctrines. Those doctrines are res judicata, also known as claim preclusion, and collateral estoppel, also known as issue preclusion. Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 925, 75 W.C.D. 279, 283 (Minn. 2015). The application of claim preclusion is a question of law and is reviewed de novo. Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004). The application of issue preclusion is a mixed question of fact and law and is also reviewed de novo. Id. at 837. The supreme court has clearly stated that both doctrines are applicable in workers’ compensation cases. Mach, 866 N.W.2d at 925, 75 W.C.D. at 283. Both doctrines are flexible and not to be applied rigidly. Id. at 925-26, 927, 75 W.C.D. at 284, 286. Instead, the focus is on whether application of either doctrine would result in an injustice to a party against whom the doctrine is asserted. Hauschildt, 686 N.W.2d at 837.
Whether the employee’s current claim is barred requires consideration of both claim preclusion and issue preclusion. Claim preclusion bars relitigation of the same claims which were brought in an earlier litigation, even if under a new legal theory, or claims which could have been brought in an earlier litigation. State v. Joseph, 636 N.W.2d 322, 327 (Minn. 2001); Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978). As the supreme court stated in Mach, as a matter of logic, this doctrine cannot apply to claims for medical benefits where the medical procedure or recommendation occurs after the earlier litigation. Mach, 866 N.W.2d at 926, 75 W.C.D. at 285. The specific claim of compensability of the SI joint injections recommended by P.A. Guth in 2016 was not at issue at the 2012 hearing. Here, as in Mach, claim preclusion does not apply.
Issue preclusion, on the other hand, prevents relitigation of identical issues which were already determined in a previous litigation. Id. at 927, 75 W.C.D. at 286. For issue preclusion to apply, the issue must have been distinctly contested and directly determined in the prior litigation, and the issue previously adjudicated must have been necessary and essential to the prior judgment. State Farm Mut. Auto. Ins. Co. v. Lennartson, 872 N.W.2d 524, 534 (Minn. 2015); Hauser, 263 N.W.2d at 808. If an earlier judgment is based on several theories, it becomes impossible for a later court to determine which issues were adjudicated by the prior court. Hauser, 263 N.W.2d at 808; Parker v. MVBA Harvestore Sys., 491 N.W.2d 904, 906 (Minn. Ct. App. 1992). Issue preclusion cannot operate based on mere speculation as to what was adjudicated in the prior litigation. Parker, 491 N.W.2d at 906. Consequently, as part of the de novo review process, a painstaking examination of the record from the prior action must occur. Id.
The employer and insurer argue that issue preclusion should bar the employee’s current claim. In 2012, the compensation judge was asked to determine whether the employee sustained a work injury to her low back, and if so, whether the recommended surgery was compensable. The judge found in the affirmative, and in so doing, made a finding that the nature and extent of the employee’s injury was an L5-S1 disc herniation. The employer and insurer assert that this nature and extent finding limits the employee’s ability to make a claim for treatment for vertebral levels other than L5-S1. We disagree.
Because the 2012 hearing transcript and exhibits were not offered at the 2018 hearing, a review of the 2012 record is limited to Judge Ertl’s Findings and Order. A careful review of Judge Ertl’s decision in its entirety, beyond the single finding regarding nature and extent, reveals a broader consideration of the issues than that articulated and advocated by the employer and insurer. Judge Ertl weighed the opinion of Dr. Burton, that no injury was sustained, against the opinion of Dr. Sinicropi, who believed the employee had injuries at not only L5-S1, but also at L4-5 and the SI joints. The judge found Dr. Sinicropi’s opinion to be persuasive. Further, Judge Ertl not only awarded the recommended L5-S1 disc replacement surgery, but also awarded all medical treatment to the low back regardless of vertebral level, including chiropractic care and injections at the SI joints. The employer and insurer’s articulation of the issue before Judge Ertl in 2012 is limited and ignores the entirety of her decision. Under these circumstances, issue preclusion does not apply.
Because neither claim preclusion nor issue preclusion apply, the employee’s current claim for treatment to her SI joints is not barred.
The employer and insurer argue the SI joint injections recommended by P.A. Guth are not reasonable and necessary. First, they claim the employee’s previous SI joint injection, which diagnosed SI joint difficulty, was not therapeutic as it did not provide any lasting relief. Second, they note the recommendation for SI joint injections was made in March 2016, and since then, the employee has not seen P.A. Guth, Dr. Sinicropi, or any other medical provider for her SI joints. We are not persuaded by the employer and insurer’s arguments.
The first SI joint injection took place over seven years ago when the employee’s primary pain driver was her L5-S1 disc area. The employee has since undergone disc replacement surgery. Her SI joints have been identified as a pain source and have been since the first SI joint injection. The current recommended injections are consistent with the employee’s treatment records and her symptoms.
By awarding the recommended SI joint injections, the compensation judge rejected the employer and insurer’s argument that the order for the procedure was stale. Because it was not raised below, whether Dr. Sinicropi will require a re-evaluation of the employee’s condition before proceeding with the injections is not a judiciable controversary at this time. See Izaak Walton League of Am. Endowment, Inc. v. State, Dep’t of Natural Res., 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977) (“The existence of a judiciable controversy is prerequisite to adjudication. … No controversy is presented, absent a genuine conflict in the tangible interests of opposing litigants.”); see also Grove v. United Hosp., No. WC05-129 (W.C.C.A. July 5, 2005). Substantial evidence supports the compensation judge’s finding that the recommended SI joint injections are reasonable and necessary medical treatment, and we affirm.
The compensation judge ordered payment to be made to the intervenors. There are no findings made by the compensation judge regarding the intervenors, the nature and extent of their claims, or whether the claims are supported by evidence. The only evidence in the record regarding the intervenors’ claims is a “intervention matrix” offered by the employee. This matrix is simply a list of many potential intervenors, the dates they were notified of their rights, the dates motions were filed, and the alleged amounts. The compensation judge awarded claims to the two intervenors, but made no finding adopting the matrix or specifying the claims. The employer and insurer appealed those awards.
At oral argument, counsel represented that both intervenors had, prior to the hearing before Judge Bouman, either been paid by the employer and insurer, or had withdrawn their intervention claims. There is no evidence of any such actions in the record before us. Further, the employer and insurer did not serve a copy of the notice of appeal or the appellants’ brief on either intervenor. They essentially argue that we, without evidence, should rely on their representation that the intervention claims were resolved and that there was no need to involve the intervenors in this appeal.
Minn. Stat. § 176.421, subd. 4(1), clearly mandates that an appellant serve a copy of the notice of appeal “on each adverse party.” Similarly, Minn. R. 9800.0310 mandates that parties serve a copy of their brief on all parties to the action. See also Minn. R. 9800.0900, subp. 5a. A party to the action includes a party to the appeal. Minn. R. 9800.0310.
It is possible that the claims of the two intervenors were resolved prior to the hearing before Judge Bouman. Judge Bouman could have made findings regarding the intervenors’ claims but did not do so. Nevertheless, the failure of the employer and insurer to notify the two intervenors of the appeal, and to serve them with a copy of the appellants’ brief, prevents this court from modifying, reversing, or vacating an order favorable to the intervenors.
Because the principles of res judicata, including both claim and issue preclusion, do not apply in this matter, and because substantial evidence supports the finding that the recommended SI joint injections are reasonable and necessary, the compensation judge’s decision is affirmed. Further, because the employer and insurer did not properly serve the intervenors under the rules, we decline to modify the compensation judge’s order of payment to the intervenors.