SHERRY L MOODY, Applicant

GEORGIA PACIFIC CORPORATION, Employer

GEORGIA PACIFIC CORPORATION, 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 findings and order of the administrative law judge are affirmed.

Dated and mailed October 11, 2005
moodysh . wsd : 132 : 1   ND § 8.5

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

At the July 11, 2001, hearing, the applicant testified:

"I don't know when was the first time I was put on restrictions by Dr. Fenander. I believe it was somewhere in January. I am not sure of the year. I was training on the trimming job at that time. It seems like it was maybe in January of 1996. My restrictions at that time were no lifting over 25 pounds and then it was changed to no lifting over 50 pounds.

*                     *                     *

Degenerative changes have been noted. As for whether there has been any objective finding or change caused by work exposure that is stated in any document or record, the only thing I can think of was the problem when I was put on training to trim in 1993 when I first got restrictions. That was based on my complaint of pain."

In her final order ALJ Smiley found the applicant failed to establish her symptoms were related to work exposure for the employer. In her decision, ALJ Smiley stated:

"The applicant has a long history of neck and back problems. The records indicate she sustained a severe fall that caused a neck injury in or about 1970. She began treating with a chiropractor named Dr. Laura Fenander in the early 1990's. Although there are no actual treatment notes in the record from 1993, the applicant apparently was having neck and other problems which she attributed to physical activities while training on a job trimming paper rolls. There is a record of permanent restrictions issued by Dr. Fenander in February 1993 (in Exhibit 6). Dr. Fenander indicated the applicant could not lift over 50 pounds and could not lift overhead.

*                     *                     *

The applicant is claiming her heavy work duties were a material contributory causative factor in the onset or progression of spinal problems and fibromalgia. As observed by Dr. Swanson, she is a small-framed person who performed relatively heavy mill work for years. This work may well have caused a temporary flair-up or exacerbation of the degenerative disc disease and fibromyalgia. However, based on this record, it is difficult to find that work exposure at the mill caused any permanent disability. The record reflects a legitimate doubt."

The applicant petitioned ALJ Smiley's order arguing that applicant suffered a compensable back injury, that that compensable injury had permanent ratings, and that it was possible that the back injury precipitated, aggravated, and accelerated her fibromyalgia beyond normal progression. In an order dated April 25, 2002, the commission affirmed the dismissal of the applicant's claim. In its order the commission noted:

Dr. Swanson took a history that the applicant's back problems had occurred on and off for over a period of four years prior to 1996. It is clear that the applicant had some narrowing of the spinal canal in her cervical neck at the C5-6 level, otherwise her x-rays were devoid of any breakage or abnormalities. The applicant has not undergone any surgery but states that she is currently actively treating for her ongoing severe neck and back pain."

*                     *                     *

Given Dr. Lemon's report and the equivocal nature of the applicant's medical evidence, the evidence was sufficient to establish a legitimate doubt that the applicant suffered any permanent disability as a result of her work for the employer."

On February 24, 2004, the applicant filed an application asserting an injury date of January 18, 1993, and describing the disability as "back injury, cumulative trauma." The respondent asserted in its answer that applicant's back claim had already been subject to a hearing on July 11, 2001, and a favorable September 7, 2001 order by the ALJ and affirmance by the commission.

A hearing was held on March 9, 2005, at which time respondent sought dismissal of the application based on claim preclusion. In introducing the case, ALJ Schifano stated that the issue was, "number 1, whether the applicant suffered an injury by occupational disease arising out of and while in the course of employment on or about January 18, 1993." The parties agreed that was an accurate statement of matters conceded and issues in dispute. The applicant submitted a WKC-16-B, completed by Dr. Laura Fenander, which indicated that cumulative trauma to applicant's back culminated in permanent limitations with a disability date of January 18, 2003. Dr. Fenander indicated the work precipitated, aggravated an accelerated a pre-existing condition and that the work exposure was a material contributory causative factor in the condition's onset and progression. Dr. Fenander indicated applicant sustained "2% PPD, loss of range of motion in the lumbar spine." Dr. Fenander indicated applicant had chronic pain, loss of motion, and lack of endurance and was limited to "no bending, stooping with lifting of 20 pounds." Exhibit A. ALJ Schifano reasoned that ALJ Smiley and LIRC had both considered the 1993 incident and found that there was no consistent medical opinion stating that applicant's symptoms related to her work for the respondent employer. See Tr. at 11-12. ALJ Schifano issued an order dismissing the application based on claim preclusion.

The applicant argues that the correct doctrine to analyze is issue preclusion not claim preclusion. Basically, claim preclusion prevents relitigation of a claim that was or could have been litigated in a prior action. Issue preclusion prevents relitigation of issues of fact or law actually litigated and decided in a prior action. Under either doctrine, the application should be dismissed.

The applicant argues that not enough attention was given to the 1993 activities and restrictions. However, it is clear that the work activities and restrictions were considered. Further, given that both were considered, and that it was previously determined that no permanent disability resulted from work exposure with the respondent as of 1997, it would not be logical to now find that there was permanent disability resulting from work activities in 1993. The applicant argues that because you can file a claim for benefits with one date, then file a subsequent claim after additional work exposure, you should be able to do the opposite. The commission disagrees. It is the fact that there is additional exposure that was not previously considered by the decision maker that permits an additional claim against an employer. If all the work exposure has been considered, and no disability due to work found, a worker can not file another claim based on the same work exposure. The fact that this is also a precipitation, aggravation and acceleration medical opinion, rather than an occupational exposure medical opinion simply means that the applicant is trying to change her theory on causation based on the same facts as considered previously.

The commission does not find that the five factors to be considered for issue preclusion favor the applicant. In particular, the applicant could have sought judicial review of the prior action, there were no significant differences in the quality or extensiveness of the proceedings, and there has been no change in burdens of persuasion. Neither public policy nor the applicant's individual circumstances make issue preclusion fundamentally unfair. Rather, the fairness argument favors the respondents; it is unfair to require the respondents to defend against piecemeal litigation against the employer. Certainly, the applicant had every incentive to fully litigate her occupational injury claim before ALJ Smiley.

The applicant claimed she suffered permanent disability from occupational exposure during her employment with the employer. It was not limited to a particular time period. The prior order examined applicant's work activities and medical treatment, including restrictions that were placed on applicant's activities in February of 1993. The ALJ found that no permanent disability resulted from applicant's work for the employer. The issue of whether applicant sustained permanent disability related to her work for the employer was litigated and decided by ALJ Smiley.

cc:
Attorney Dana W. Duncan
Attorney Robert J. Craanen

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