Day v. SD Warren Company

Insurance Company


Date Decided

July 22, 2016

Panel Members

Timothy Collier

Elizabeth Elwin

Evelyn Knopf


Res Judicata


Res Judicata Gradual Injury Spine

File Size

102 KB


Summary from the Troubh Heisler Attorneys

Mr. Day worked at S.D. Warren as a pipefitter and welder. In a previous round of litigation he filed a petition claiming an acute cervical spine injury and a gradual use injury, both dated October 29, 2010. In March of 2013, the ALJ issued a decree that granted the petition as to the acute injury, but awarded no ongoing incapacity benefits. The ALJ did not address the gradual use injury. Mr. Day filed a motion for additional findings of fact, but his motion did not request findings related to the gradual use injury. On April 2, 2013, the ALJ issued an amended decision that did not alter the outcome.

In the current litigation, Mr. Day filed petitions claiming gradual injuries to his cervical spine manifesting December 10, 2010 and July 21, 2011. Judge Jerome denied the petitions, concluding that the prior March 2013 decision barred these gradual injury claims. Mr. Day appealed claiming that Judge Jerome erred in applying res judicata to his gradual injury claims because he alleged different dates of injury that were not previously litigated.

The panel affirmed Judge Jerome’s decision, holding that. “while res judicata does not preclude an award of benefits for one injury under the Workers’ Compensation Act when there has been a prior adjudication regarding a different injury, it can preclude an award when there was a prior adjudication regarding the same injury. The panel relied on Traussi v. B & G Foods, Inc. Me. W.C.B. No. 15-10, ¶ 10 (App. Div. 2015).

Judge Jerome determined that the gradual use injury in the second round of petitions was the same injury as asserted in the first round. There were no new facts in the present case that were not in the first case. Furthermore, although the ALJ in the first round of litigation made no findings related to the gradual use injury, Mr. Day requested no additional findings regarding the gradual injury. Therefore, Judge Jerome neither misconceived the law nor applied the law to the facts in an arbitrary or irrational fashion when determining that the gradual injuries alleged in the 2013 petitions were the same as that alleged in the previous petition, and were thus barred from relitigation.

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