JAMES E MATTILA, Deceased Applicant
COUNTY OF ST CROIX SHERIFFS DEPT, Employer
COUNTY OF ST CROIX, Insurer
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.
The application is dismissed, except that jurisdiction is reserved with respect to the issue of outstanding medical expenses.
Dated and mailed September 16, 2010
mattija . wsd : 185 : 6 ND6 9.28; 10.13
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission found credible the causation opinion of Dr. Ronald Vessey, to the effect that the June 2002 work injury played no causative role in the deceased applicant's disability that resulted in his inability to continue working.
The deceased applicant (applicant), by his surviving spouse, has argued that either claim preclusion, judicial estoppel, or issue preclusion applies to the claim for permanent total disability, because Wisconsin Employee Trust Funds (ETF) certified the applicant to be eligible for duty disability benefits under Wis. Stat. § 40.65, and did so in part due to an employer concession regarding assignment to light or restricted duty. The principal argument is that issue preclusion applies, but the commission finds that this doctrine is inapplicable.
Wisconsin law on the doctrine of issue preclusion was summarized in Teriaca v. Milwaukee Employee's Retirement System, 2003 WI App 145, 265 Wis. 2d 829, 667 N.W.2d 791:
12. "Issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in the prior action." Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). The general rule on issue preclusion is: "When an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action...whether on the same or a different claim." Precision Erecting, Inc. v. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288, 301, 592 N.W.2d 5 (Ct. App. 1998)(quoting Restatement (Second) of Judgements § 27 (1982)).
13. However, any application of the issue preclusion doctrine must comport with principles of fundamental fairness. See Precision Erecting, 224 Wis. 2d at 304. The Supreme Court has adopted a five-factor fundamental fairness test. See id. at 305. A court may consider some or all of the factors when 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 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?
The eligibility requirements for Duty Disability under Wis. Stat. § 40.65 are set forth in Subsection 40.65(4):
(4) A protective occupation participant is entitled to a duty disability benefit as provided in this section if:
(a) The employee is injured while performing his or her duty or contracts a disease due to his or her occupation;
(b) The disability is likely to be permanent; and
(c) 1. The disability causes the employee to retire from his or her job;
2. The employee's pay or position is reduced or he or she is assigned to light duty; or
3. The employee's promotional opportunities within the service are adversely affected if state or local employer rules, ordinances, policies or
written agreements specifically prohibit promotion because of the disability.
The argument proffered is that by conceding the applicant's eligibility for Section 40.65 benefits, the employer also conceded that he was permanently injured in the work incident of June 4, 2002, and that such concession somehow translates into a previously-litigated judgment of permanent total disability. First, in the "Employer Certification Duty Disability" (Hearing Exhibit PP), the employer only conceded that the work incident "caused the applicant to be permanently assigned to 'light' or restricted duty," which is not the same as conceding permanent total disability.
Second, the physician appointed by ETF relative to the Section 40.65 application, Dr. Daniel Sherry, certified that the effects of the work injury were "likely to be permanent,"(1) but indicated that the percentage of permanency was "unknown." (Hearing Exhibit H). The applicant's physician, Dr. George Leyda, opined in his medical report that the applicant was 100 percent permanently disabled (Hearing Exhibit G). Therefore, there was no unanimity in the medical opinions leading to the Section 40.65 eligibility finding. Significantly, the employer had accommodated and was willing to continue to accommodate the applicant's "decreased memory" and "decreased ability to think quickly" that were attributed to the work injury. The credible medical evidence leads to the inference that it was principally due to the effects of the applicant's uncontrolled diabetes, and to a lesser degree due to the effects of his congestive heart failure, that he was unable to continue to work.
Third, there was no actual litigation of any issue in the Section 40.65 certification proceeding, and particularly no litigation of the issue of permanent total disability.
Fourth, upon examination in this case of the five factors that must be considered in determining whether application of the issue preclusion doctrine comports with fundamental fairness, all five factors dictate against application of the doctrine.
As for the application of the doctrine of claim preclusion (res judicata), that doctrine only applies when three factors are present:
(1) An identity between the parties or their privies in the prior and present suits;
(2) An identity between the causes of action in the two suits; and
(3) A final judgment on the merits in a court of competent jurisdiction." (Northern States Power Company v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723 (1995).
None of those factors is present when comparing a claim for either permanent total disability or death benefits, with the claim for duty disability under Section 40.65. The causes of action are not identical. Also, the Section 40.65 claim did not involve the applicant's surviving spouse as a party, as does the death benefit claim; and the permanent total disability claim does not involve ETF, as did the Section 40.65 claim. Finally, the Section 40.65 certification did not involve a final judgment on the merits of either a permanent total disability or a death benefit claim.
Judicial estoppel is applicable to court proceedings, not to administrative proceedings, and may only be invoked where the following three conjunctive conditions are present:
(1) The later position is clearly inconsistent with the earlier position;
(2) The facts at issue are the same in both cases; and
(3) The party to be estopped convinced the first court to adopt its position." (Mrozek v. Intra Financial Corp., 2005 WI 73,
22, 281 Wis. 2d 448, 699 N.W.2d 54).
None of these three doctrinal requirements is present in this proceeding for permanent total disability/death benefits, when compared to the prior proceeding for duty disability benefits under Section 40.65. Eligibility for duty disability benefits under Section 40.65 is not inconsistent with a finding that there was no permanent total disability. Key facts such as Dr. Vessey's medical report, that are in evidence in the death benefit/permanent total disability claims, were not in evidence in the Section 40.65 proceeding. Finally, neither a claim for death benefits made pursuant to Wis. Stat. § § 102.46 or 102.47, nor a claim for permanent total disability made pursuant to Wis. Stat. § 102.44, was presented in the Section 40.65 proceeding, let alone adopted in that proceeding.
cc:
Attorney Dennis Sullivan
Attorney Peter Pustorino
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