Percy Madore v. Antonia Levesque & Sons, Inc.

Insurance Company

Travelers Insurance

Date Decided

October 29, 2021

Panel Members

Timothy Collier

David Hirtle

Mike Stovall


Res Judicata Medical Expenses Medical Expenses Res Judicata


File Size

146 KB


Summary from the Troubh Heisler Attorneys

Percy Madore v. Antonio Levesque & Sons (21-29, attached) - Madore has paraplegia below the waist from a 1979 work injury at Levesque & Sons. In 2009 a Board decree ordered Levesque to pay for Madore’s ATV. In 2014, Madore replaced that ATV, and in 2016 he got snow tracks, a hitch and a trailer. He filed a petition on the replacement ATV but did not include the accessories, so the 2017 decree awarded payment on only the ATV.

Levesque declined to pay for the accessories, so Madore filed another petition. Levesque conceded the necessity and reasonableness but said res judicata barred bills incurred before the prior decree, and Judge Pelletier agreed: “The bills presented in this action were available at the time of the prior litigation and pertain to the same cause of action,” and “[b]y presenting his claim with respect to the replacement ATV in piecemeal fashion, the employee has run afoul of the principles of res judicata.”

Madore appealed, arguing res judicata did not bar injury-related bills that existed before a decree awarding other benefits. The Appellate Division cited Lewis (2001) on applying the “transactional test“ to determine whether the two claims were within the same “cause of action”:

In applying the transactional test, the claims are the same if they are part of the same transaction, i.e., they are ‘founded upon the same transaction, [arise] out of the same nucleus of operative facts, and [seek] redress for essentially the same basic wrong. To determine whether facts arise out of the same transaction, we consider whether the facts are related in time, space, origin, or motivation.

The panel found that Madore purchased the ATV accessories at different times and in different transactions, holding that “Mr. Madore should not forfeit reimbursement for reasonable and necessary aids because he failed to submit bills for different but related items in conjunction with the prior litigation.”

Although the panel cited Pomerleau (1983) that on review it can determine only whether the ALJ’s “application of the law to the facts was neither arbitrary nor without rational foundation,” the panel urged liberality in such cases and concluded that the ALJ “misapplied the law.” The panel vacated the ALJ’s decision and, as res judicata was the only issue, granted Madore’s petition on the ATV accessories.

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