RES JUDICATA. Where the claim brought by the employee had been specifically litigated and decided in an earlier decision involving the same parties, the compensation judge did not err by denying the claim as barred by the principles of res judicata.
Compensation Judge: Stacy P. Bouman
Attorneys: Sheila Anderson, Pro se Appellant. Andrew M. Grimsrud and Elliot E. Frayne, Aafedt, Forde, Gray, Monson & Hager, P.A., Minnesota, for the Respondents.
PATRICIA J. MILUN, Chief Judge
The pro se employee appeals the compensation judge’s finding that her claims are barred by res judicata. We affirm.
Sheila Anderson, the employee, began working for ShopNBC/ValueVision Media, Inc., the employer, as a production stylist in 2004. The position involved setting up products and preparing backgrounds for retail and promotional television shoots. Beginning in 2009, the employee no longer had an assistant and had to perform additional physical work activities which included lifting, carrying, bending, and loading products.
On October 27, 2011, the employee sought chiropractic care with Dr. Adrienne Castrovinci of Healthy Living Chiropractic, reporting lower back and hip pain and neck tension. The employee continued this treatment through January 3, 2012, when she described herself as doing well.
On January 23, 2012, the employee sustained work-related injuries to her back, neck, and both shoulders in a fall. The employer and insurer initially admitted liability for this incident and the employee sought chiropractic treatment through April 26, 2012. The employee underwent an independent medical examination (IME) by Dr. Tilok Ghose on June 12, 2012, on behalf of the employer and insurer. Dr. Ghose opined that the injury was not significant and that the employee did not need any work restrictions. After receiving this report, the employer and insurer denied further liability for this date of injury.
The employee sustained another work-related injury to her left arm, shoulder, and neck on October 19, 2012, while helping to carry a couch. She returned to Dr. Castrovinci for chiropractic treatment through the end of 2012 for symptoms in her neck, back, shoulders, and hips. On March 13, 2013, the employee sought treatment at Twin Cities Pain Clinic for complaints of back pain and symptoms in her left arm and neck. An MRI scan of the lumbar spine showed a small right lateral recess disc protrusion with contact and slight posterior displacement of the nerve root at the right S1 level. A cervical MRI scan also showed left central disc protrusions with no compression or displacement at the C5-6 and C6-7 levels. The employee underwent another IME by Dr. Ghose with regard to her October 19, 2012, injury. In his report dated April 1, 2013, Dr. Ghose opined that this injury would have resolved after 12 weeks of chiropractic care. Dr. Castrovinci later agreed with this conclusion. Following Dr. Ghose’s report, the employer and insurer denied ongoing benefits for this injury.
On July 2, 2013, the employee claimed she sustained pain in her neck, back, and shoulder as a result of picking up and carrying a tuxedo from a mall to a photo shoot. She continued to work with restrictions until she stopped working for the employer on July 19, 2013. The employee filed a claim petition on July 29, 2013. At the request of the employer and insurer, the employee was seen for an IME with Dr. Rajan Jhanjee on September 12, 2013. Dr. Jhanjee opined that any injuries the employee sustained in 2012 were temporary aggravations of her pre-existing condition and were not substantial contributing factors to her condition at the time of his examination. He also opined that the employee did not sustain any injury on July 2, 2013, and did not need any work restrictions or additional treatment. After another examination on August 6, 2014, Dr. Jhanjee opined that the employee’s condition was not related to any work injury.
On January 23, 2015, the employee was evaluated by Dr. Robert Wengler, who opined that the 2012 work injuries were substantial contributing causes to the employee’s back condition. He also opined that the employee’s need to cease her work activities in July 2013 was due to a Gillette aggravation injury to her cervical and lumbar spine. Dr. Wengler noted that the employee had no recollection of a work incident in 2010 other than reporting she occasionally received chiropractic treatment in 2010 and 2011, but did not recall a specific back injury.
On December 18, 2015, the employee was seen by Dr. Parastoo Fazeli for a rheumatology consultation. A December 29, 2015, MRI scan of the sacroiliac joints indicated mild disc desiccation at L5-S1 and possible mild sacroiliitis. Dr. Fazeli diagnosed the employee with ankylosing spondylitis but did not opine as to whether or to what extent the employee’s overall condition was related to her work injuries or the ankylosing spondylitis diagnosis.
The employee also began treating for depression symptoms, which she claimed were consequential to her work injuries, and was evaluated by psychologist Dr. Marvin Logel on March 2, 2016. Dr. Logel concluded that the employee presented with depressive disorder, but he did not associate those symptoms with the employee’s work injuries. The employee was also diagnosed by Dr. Alford Karayusuf with major depression and anxiety disorder on October 30, 2014.
On March 3, 2016, the employee was seen for an IME by Dr. Kristen Zeller. Dr. Zeller agreed with the diagnosis of ankylosing spondylitis, and opined that the employee’s work injuries were not related to her current condition. She also stated that the work injuries were temporary sprain-type injuries that had resolved. Dr. Zeller recommended the employee seek treatment of her ankylosing spondylitis and that she should remain off of work until she was able to manage the condition with proper treatment.
The employer and insurer admitted liability for the January 23, 2012, and October 19, 2012, work injuries and paid for the employee’s chiropractic treatment for limited periods of time. Primary liability for the July 2, 2013, injury, was initially admitted, but later denied. The employee’s claims for medical, wage loss, and vocational rehabilitation benefits related to those injuries, as well as an amended claim for a Gillette injury culminating on July 2, 2013, and consequential depression, were consolidated for hearing. At the hearing, held on August 24 and September 16, 2016, the employee testified that her soreness and fatigue symptoms started to worsen in 2011 due to the increased physical demands of her job, and they continued to worsen through July 2013. The employee also described her symptoms in 2013 as more intense than those she experienced in 2011.
After the hearing, the compensation judge found that the employee failed to prove a compensable, work-related injury to her neck, back, and shoulders, either specific or Gillette, on July 2, 2013. The judge also found the employee failed to prove that she sustained consequential chronic pain syndrome and/or depression as a result of the January 23 or October 19, 2012, injuries. In making her determinations, the judge noted that the employee’s medical records indicated that the employee’s condition continued to worsen after she stopped working in 2013. The judge also considered Dr. Zeller’s and Dr. Fazeli’s medical opinions in reaching her findings on the nature and extent of the employee’s condition and its causation. The pro se employee appealed. This court concluded that the compensation judge could reasonably find these opinions more persuasive than the opinions of the other doctors and that the compensation judge did not err by relying on those medical opinions. In a decision served and filed on August 31, 2017, this court affirmed.
After the 2016 hearing, the employee continued to seek treatment. In a letter dated December 22, 2016, Michael Eckroth, P.A., at Twin Cities Spine Center indicated that, compared to the previous 2013 MRI scan, a new MRI scan revealed “slight progression to the disc degeneration at the L5-S1 level . . . [t]he other levels of the lumbar spine, remain essentially normal.”  The L5-S1 disc herniation was thought to be the source of the employee’s right leg pain and a cortisone injection was suggested as treatment. The new MRI scan also revealed disc bulging at the C5-6 and C6-7 levels, which were at issue in the 2016 proceedings. Dr. William Mullin reviewed a February 16, 2017, MRI scan of the sacroiliac joint and opined that the imaging was most consistent with ankylosing spondylitis. Dr. Donna Fontana at Arthritis and Rheumatology Consultants concurred with this interpretation.
The employee was treated with injections in 2017 and 2018. A January 2018 MRI scan indicated a large right-sided disc herniation at L5-S1 and Dr. Donald Asmussen recommended a surgical consultation. Additional medical records from HealthEast, dated from July through December 2017, indicate the employee’s diagnoses as “chronic pain disorder, major depression, and ankylosing spondylitis.” A physician’s certification completed by Dr. Bernadette Clevenger and dated June 3, 2020, lists the employee’s disabling conditions as “lumbar DDD [degenerative disc disease], anxiety/depression, and ankylosing spondylitis/radiculitis.”
On October 9, 2017, the employee filed a new claim petition alleging a work-related Gillette injury involving her sacroiliac, pelvic, and foot, with a culmination date of October 27, 2011. The employer and insurer denied liability, arguing that the claim was barred by res judicata. On October 29, 2017, the employee amended her claim petition to remove the reference to her sacroiliac, pelvic, and foot and to add her right trapezius, right piriformis, and right hip to the claim. The parties agreed to bifurcate the claim to first address the legal issues of whether the claim was barred by res judicata, collateral estoppel, or the statute of limitations. A second hearing would address the employee’s claims if the judge decided they were not barred as a matter of law. The parties stipulated at the hearing that the employee was claiming injuries involving her cervical spine at the C5-6 level, lumbar spine at the L5-S1 level, pelvis, and sacroiliac joint, as well as shoulder and right leg pain, and consequential depression and anxiety, culminating in disability on October 27, 2011. The employee represented herself at the hearing. The compensation judge denied the employee’s claim, finding that it was barred by res judicata. The judge also found the issues of collateral estoppel and statute of limitations were moot. The pro se employee appeals.
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 alleges the compensation judge erred by denying her claims on the grounds of res judicata, asserting that her current claims arise from a different set of facts and circumstances than those which were litigated and determined in the 2016 proceeding because she is now claiming a Gillette injury with a different culmination date of October 27, 2011. The employer and insurer argue the employee’s claims are barred by res judicata because the 2016 proceeding involved the same parties, resulted in a judgment on the merits, and involved the same cause of action.
Res judicata, or claim preclusion, is a finality doctrine in which a final judgment on the merits bars a second suit for the same claim by the same parties. Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1984). A subsequent claim is precluded when “a prior claim involved the same cause of action, there was a judgment on the merits, and the claim involved the same parties or their privies.” Nelson v. Am. Family Ins. Grp., 651 N.W.2d 499, 511 (Minn. 2002). A cause of action or claim is “‘a group of operative facts giving rise to one or more bases for suing.’” Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn. 2004) (quoting Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 9 (Minn. 2002)). Claims are not considered the same cause of action if “the right to assert the second claim did not arise at the same time as the right to assert the first claim.” Care Inst., Inc.-Roseville v. Cnty. of Ramsey, 612 N.W.2d 443, 447 (Minn. 2000). The common test for determining whether an action is precluded by res judicata is to determine “‘whether the same evidence will sustain both actions.’” Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 925, 75 W.C.D. 279, 284 (Minn. 2015) (quoting McMenomy v. Ryden, 276 Minn. 55, 58, 148 N.W.2d 804, 807 (1967)). A claim for medical expenses after a previous decision for additional treatment for an injury with admitted or adjudicated liability, or for a new condition not covered in previous litigation, is not barred by res judicata. Id. at 926, 75 W.C.D. at 285.
The supreme court has determined the principles of res judicata may apply in workers’ compensation proceedings, however it is narrowly applied and bars subsequent proceedings only on issues and claims that were specifically litigated and decided in an earlier decision. Alexander v. Kenneth R. LaLonde Enters., 288 N.W.2d 18, 32 W.C.D. 312 (Minn. 1980); see also Fischer v. Saga Corp., 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993); Westendorf v. Campbell Soup Co., 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976). In determining whether res judicata applies to a specific case, “the focus is on whether its application would work an injustice on the party against whom estoppel is urged.” Johnson v. Consolidated Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn. 1988).
In this case, res judicata applies only if the claims asserted in the current case were litigated and decided at the 2016 hearing. In her November 4, 2016, decision, the compensation judge found that the employee did not sustain a specific or Gillette injury to her bilateral shoulder, neck, and back on July 2, 2013, and that the employee failed to prove she sustained a consequential chronic pain syndrome or depression as a result of the January 23 or October 19, 2012, injuries. The compensation judge’s findings were upheld in their entirety by this court on August 31, 2017, and there was no further appeal.
The employee argues res judicata does not bar her current claim because it arises from a different set of facts and circumstances than the claim litigated at the 2016 proceeding. We disagree. It is undisputed that the prior 2016 proceeding and the current litigation involve the same parties and that there was a judgment on the merits after the 2016 proceedings. The issue on appeal is whether the issues at the 2021 hearing were specifically litigated and decided at the 2016 hearing. At the 2021 hearing, the parties stipulated that the injuries being claimed by the employee were to her cervical spine at C5-6, lumbar spine at L5-S1, pelvis, sacroiliac joint, radicular pain into the bilateral shoulders, radicular pain into the right leg, and consequential anxiety and depression, resulting in a Gillette injury culminating on October 27, 2011. Based upon the record from the 2016 proceedings, the employee had claimed injuries to her cervical spine at C5-6 and C6-7, lumbar spine at L5-S1, bilateral shoulders, and consequential chronic pain syndrome and depression as a result of multiple work-related injuries in 2012 and 2013. In her appeal, the employee claims that the current case deals with injuries to her sacroiliac joint, pelvis, and spine with radicular pain at C5-6, C6-7, and L5-S1, and the anxiety those injuries have caused.
With the exception of a different claimed culmination date of October 27, 2011, for the alleged Gillette injury rather than July 2, 2013, the injuries being claimed by the employee at the 2021 hearing were the same as those litigated in 2016. The date a Gillette injury culminates is when the cumulative effect of the work duties on the employee’s physical condition is sufficiently serious to disable the employee from working, or another date of an ascertainable event such the date of job duty changes, surgery recommendations, or new work restrictions. See Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981); see also Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 233, 36 W.C.D. 504, 508 (Minn. 1984). In this case, the employee sought chiropractic care on October 27, 2011, but continued working from 2011 through 2013. In 2016, the compensation judge found that the employee had not sustained a Gillette injury as of July 2013. That claim would necessarily include consideration of the employee’s work activities and condition from 2011 to 2013. The employee’s claim of an earlier date of culmination in 2011 is therefore based on the same work activities and for the same condition as the Gillette injury claim that was litigated and decided in 2016.
In addition, the employee is claiming temporary partial disability benefits from June 20 through July 18, 2013, and temporary total disability benefits from and after July 19, 2013, which were the same wage loss claims at issue in the 2016 proceedings. The compensation judge considered these claims and found that the employee did not sustain a work-related injury to her neck, back, and shoulders, either specific or Gillette, on July 2, 2013, and did not sustain consequential chronic pain syndrome and/or depression as a result of the January 23 or October 19, 2012, work injuries. Further, the employee admits she relies mostly upon the same records and expert reports available and presented at the 2016 hearing to establish her current claims. While the employee also submitted some updated medical records, they do not support the claims of a new injury or worsening condition since the 2016 proceedings. A December 2016 MRI scan revealed slight progression to the disc degeneration at the L5-S1 level and that the other levels of the lumbar spine remained essentially normal. The new MRI scan also revealed disc bulging at the C5-6 and C6-7 levels, which were also at issue in the 2016 proceedings. The compensation judge did not err by finding that the employee’s current claim involves the same cause of action as the claim litigated at the 2016 hearing.
The employee also argues that her claim in the current case was not ripe for consideration at the time of the 2016 hearing, alleging that the main point of contention at the 2016 hearing was her diagnosis of ankylosing spondylitis, and that since the hearing, that condition has been definitively ruled out as a potential diagnosis. The record supports that the employee’s diagnosis of ankylosing spondylitis was at issue, litigated, and decided as the cause of the employee’s symptoms at the time of the 2016 hearing. In reaching her findings on the nature and extent of the employee’s condition and its causation in the 2016 decision, the compensation judge relied on Dr. Zeller’s and Dr. Fazeli’s medical opinions that the employee had a diagnosis of ankylosing spondylitis and on Dr. Zeller’s opinion that the employee’s work injuries were not related to her current condition.
The employee has not shown, however, that a diagnosis of ankylosing spondylitis has been definitively ruled out since that decision. Evidence presented at the 2021 hearing shows that the employee continues to have a diagnosis of ankylosing spondylitis. Dr. Mullin and Dr. Fontana interpreted the February 2017 MRI scan as consistent with ankylosing spondylitis. HealthEast medical records from July through December 2017 also list the employee’s diagnoses as chronic pain disorder, major depression, and ankylosing spondylitis. In June 2020, Dr. Clevenger listed the employee’s disabling conditions as lumbar degenerative disc disease, anxiety/depression, and ankylosing spondylitis/radiculitis. The employee’s current claim for workers’ compensation benefits does not involve a new or changed condition.
The issues and claims raised by the employee at the 2021 hearing were specifically litigated and decided in the 2016 decision by the compensation judge and were affirmed by this court. Accordingly, we affirm the compensation judge’s decision denying the employee’s claim as barred by the principles of res judicata.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
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 In her testimony at the 2021 hearing and in her briefs on appeal, the employee referred to a 2010 work injury. This date was not included in the employee’s pleadings as a date of injury for either hearing. At the 2021 hearing, the employee submitted an injury claim form, dated March 30, 2010, completed by the employer which indicated that the employee had reported that she had begun experiencing back pain at the end of February which she related to her work activities. The employee apparently sought treatment the next day, was diagnosed with a pinched nerve and recommended for physical therapy, but was allowed to continue working with lifting restrictions. Little information regarding this injury is included in the record. Dr. Wengler had recorded in 2015 that the employee had no specific recollection of a back injury in 2010 but that she occasionally received chiropractic treatment in 2010 and 2011. Whether any such injury occurred, it was not at issue at either hearing. To the extent that the employee may have continued having symptoms from and after 2010, those symptoms would be included in her claim for a Gillette injury culminating on October 27, 2011, and will not otherwise be addressed by this court.