KRISTOPHER OUELLETTE, Employee/Appellant, v. WAL-MART STORES, INC. and CLAIMS MGMT., INC., Employer-Insurer/Respondents.

FEBRUARY 19, 2020
No. WC19-6313

EVIDENCE – RES JUDICATA.  To the extent the employee’s current claim for permanent partial disability benefits is based on evidence that was presented in support of a prior claim that was adjudicated and denied, his current claim is barred by res judicata.  To the extent the employee’s current claim for permanent partial disability benefits is based on new evidence and for a different condition, the compensation judge must consider the compensability of that claim.

    Determined by:
  1. David A. Stofferahn, Judge
  2. Patricia J. Milun, Chief Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge:  William J. Marshall

Attorneys: Christopher P. Rosengren, Rosengren Law Office, LLC, North Mankato, Minnesota, for the Appellant.  Jerome D. Feriancek, Trial Group North, LLP, Duluth, Minnesota, for the Respondents.

Affirmed, in part, and vacated and remanded, in part.



The employee has appealed an order dismissing with prejudice his claims for permanent partial disability (PPD) benefits.  We affirm, in part, and vacate and remand, in part.


The employee, Kristopher Ouellette, was employed as an inventory control specialist on March 17, 2011, when a pallet jack loaded with dog food rolled over his left foot.  The employer and its insurer admitted liability for the injury.

The employee suffered from lower extremity pain after the injury and was later diagnosed with complex regional pain syndrome (CRPS).  In January 2012, a spinal cord stimulator was implanted.  Thereafter, the employee claimed he was unable to walk and the device was removed.  The employee was seen for an independent medical examination in November 2012 by Dr. Rupert Exconde.  Based on the employee’s claimed paraplegia, Dr. Exconde rated the employee as having 75 percent PPD under Minn. R. 5223.0360, subps. 6.A. and 7.E.(3)(d).  The employer and insurer commenced payment of weekly PPD benefits.

The employee filed a claim petition seeking payment of his benefits in a lump sum and seeking penalties against the employer and insurer for failing to pay benefits in that manner.  The employer and insurer filed a petition to discontinue benefits and the claims of the parties were heard by a compensation judge on February 5, 2014.  In his Findings and Order, the compensation judge determined that the preponderance of the evidence did not support a claim for 75 percent PPD.  The employee appealed to this court and the decision of the compensation judge was affirmed.[1]

In February 2019, the employee filed a new claim petition claiming 83 percent PPD.  He alleged entitlement to benefits under Minn. R. 5223.0360, subps. 6.A. and 7.E.(3)(d), Minn. R. 5223.0590, subp. 3.B., and Minn. R. 5223.0600, subp. 3.C.  The employer and insurer moved to dismiss the claim petition, arguing that the employee’s claims were barred by res judicata.  The motion was considered by a compensation judge who agreed with the employer and insurer and dismissed the employee’s claim petition with prejudice.  The employee has appealed to this court.


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 employee appeals the compensation judge’s dismissal of his claim for 83 percent PPD, arguing it was error to conclude that the claim was barred by res judicata.  The principle of res judicata applies in workers’ compensation cases.  Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 75 W.C.D. 279 (Minn. 2015).  Also referred to as claim preclusion, res judicata bars a claim that was previously determined.  Id.

In support of his current claim for 83 percent PPD, the employee submitted the February 12, 2013, report of Dr. Exconde.  This report also served as the basis for the employee’s claim for 75 percent PPD in 2014.  That claim was denied by a compensation judge and was reviewed and affirmed by this court and by the supreme court.  The employee argues that his condition has deteriorated since 2014 and that he is not only entitled to present a new claim for PPD, but that his claim may be based upon the same evidence.  However, the employee has presented no support for this argument.  His current effort to re-litigate the same claim with the same evidence is barred by res judicata and we affirm the compensation judge on this issue.

What the compensation judge did not address in dismissing the employee’s current claim is the PPD claimed beyond the 75 percent articulated by Dr. Exconde in his 2013 report.  The employee is now claiming PPD under Minn. R. 5223.0590, subp. 3.B., and Minn. R. 5223.0600, subp. 3.C.  Submitted with his 2019 claim petition was a 2018 chart note from Mayo Clinic.  These issues were not considered in 2014 and are not barred by res judicata.  See Mach, 866 N.W.2d at 926, 75 W.C.D. at 285.

Because this portion of the employee’s claim is not barred by res judicata, and its merits were not considered by the compensation judge, we vacate and remand the matter for a determination of whether the employee has presented a compensable claim for PPD benefits to the extent he has offered new evidence to support such a claim.

The decision of the compensation judge is affirmed, in part, and vacated and remanded, in part, as set forth in this opinion.

[1] The employee appealed to the Minnesota Supreme Court which summarily affirmed this court’s decision.  Ouellette v. Wal-Mart Stores, Inc., 75 W.C.D. 135 (W.C.C.A. 2014), summarily aff’d (Minn. Apr. 1, 2015).