Norberg v. SD Warren
June 8, 2018
Multiple Injuries Work Restrictions Partial Incapacity Benefits
Summary from the Troubh Heisler Attorneys
Mr. Norberg sustained multiple injuries in 1984 when he was knocked into a steel frame. He returned to work with restrictions and in 1992 the WCB awarded him fixed partial incapacity benefits. Both parties later filed Petitions for Review, and in 2000 the WCB issued a decree maintaining the employee's fixed partial benefit payment scheme.
Mr. Norberg’s doctor then imposed additional restrictions which S.D. Warren could not accommodate, so they voluntarily increased his benefit level to 100% partial. In 2009 S.D. Warren filed a Petition for Review seeking to terminate his benefits, but in 2010 Judge Collier found Mr. Norberg's condition had not changed since the 2000 decree and allowed Warren to reduce benefits only to the fixed partial rate established in the 2000 decree.
In 2011, Mr. Norberg filed a Petition for Review requesting an increase to total benefits. He argued that Judge Collier should compare his current condition to what it was at the time of the 2000 decree, rather than at the time of the 2010 decree, because the employer had been the petitioning party in 2010, not the employee. Judge Collier disagreed and denied his petition, finding that Mr. Norberg had not overcome the res judicata effect of the 2010 decree, because he had not shown a change of circumstances since then. Mr. Norberg appealed.
The Appellate Division affirmed the decision, holding that in 2010, because the employee had requested an increase in benefits and the employer had requested a decrease in benefits, the issue of the level of Mr. Norberg's incapacity was fully adjudicated in that decree, so the 2010 decree became the new benchmark against which future incapacity would be measured.