STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MAJID HADID, Applicant

COUNTY OF MILWAUKEE, Employer

WORK INJ SUPP BEN FUND, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2007-031776


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed June 25, 2009
hadidma : 175 : 5 ND 8.5

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The work injury supplemental benefit fund contends in its response to the applicant's petition for commission review, the applicant's current claim is precluded by issue preclusion. Under issue preclusion, a final judgment bars relitgation of the factual or legal issue actually litigated and decided in an earlier action. State v. Parrish 258 Wis. 2d 521(Ct. App. 2002).

To apply issue preclusion, the issue in both actions must be the same and have been actually litigated, and the party against whom preclusion is asserted must have been a party, in privity with a party or had an identity of interest with a party to the previous litigation. State v. Miller 274 Wis. 2d 471(2004). If both criteria are satisfied, the court must determine whether application of issue preclusion would be fundamentally unfair considering some or all of several factors. In the case of Teske v. Northwest Airlines (Comm. Dec. dated January 14, 2005), the commission noted any application of the issue preclusion doctrine must comport with principals of fundamental fairness.

Pursuant to the court of appeals holding in Precision Erecting, Inc. v. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288 (Ct. App. 1998) a court may consider some or all of the following factors in making the decision to invoke issue preclusion:

  1. could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment;
  2. is the question one of law that involves two distinct claims or intervening contextual shifts in the law;
  3. do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue;
  4. have the burdens of persuasion shifted as such that a party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or
  5. are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

In our current case, the evidence does not indicate the issue of whether the applicant contracted Hepatitis C as a result of a fall at work in September 1994 was litigated in the prior case in 1999. It is also not established whether the applicant could obtain review of the judgment on the finding that he contracted Hepatitis C as a result of a fall at work in September 1994 in prior case. The issue in the prior case was whether the applicant had contracted Hepatitis B as a result of a fall at work in June 1994. The administrative law judge's findings in the 1999 case found the applicant contracted Hepatitis C in 1986, but this was not at issue in the case and was simply a corollary finding which was not relevant to the resolution of the fundamental claim of whether the applicant had contracted Hepatitis B in June 1994. Therefore, the commission does not find that it is fundamentally fair to dismiss the applicant's current claim for contracting Hepatitis C in September 1994 on the basis of issue preclusion for a secondary finding in a prior case of 1999, concerning the contraction of Hepatitis C.

The applicant contends in his petition for commission review in the current case, the administrative law judge erred in determining that he did not suffer from Hepatitis C based on a fall at work in September 1994. However, the earliest diagnosis in the evidence presented at the hearing in our current case, was a diagnosis from Dr. Elgin for Hepatitis C in 1998. Dr. Elgin admits in his letter dated July 5, 2000, he is unclear how or when the applicant contracted his Hepatitis C. There is evidence in the record from the prior claim the applicant reported to his treating physicians that he contracted Hepatitis C as early as 1986. Dr. Garone does not give any supporting documentation or medical tests or other information to establish how he determined the applicant had Hepatitis C dating back to 1994, given the fact Dr. Garone did not begin treating the applicant until 2006.

There are no medical records which specifically pinpoint the onset of the applicant's Hepatitis C in September 1994. The administrative law judge appropriately noted the applicant was reporting fatigue and other symptoms consistent with Hepatitis C as early as 1992. In a report dated September 10, 1999, Dr. Feinsilver reports the applicant indicated he had preexisting Hepatitis C which had been quite mild. The administrative law judge also appropriately noted Dr. Elgin stated the applicant contracted Hepatitis C prior to June 1, 1994 in his earlier reports. There is evidence the applicant was exposed to intravenous drug use prior to 1994 as well as fatigue, which the applicant cited as a sign of a recent contraction or aggravation of his Hepatitis C, also existed before 1994.

Based on the inconsistencies in the applicant's testimony as compared to the medical reports, and given the speculative nature of Dr. Garone's report without any supporting documentation, and given the evidence of Dr. Elgin's findings and the applicant's admission of Hepatitis C in 1986, the commission finds the administrative law judge appropriately dismissed the applicant's claim for an occupational injury in the nature of Hepatitis C due to a fall at work in September 1994.

 

cc: Attorney Duane Harlow


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