Richard Pratt v. S.D. Warren Company
January 3, 2023
Katherine Gatti Rooks
CategoriesRes Judicata Coordination of Benefits Durational Limit Permanent Impairment Coordination of Benefits Durational Limit Permanent Impairment Res Judicata
Summary from the Troubh Heisler Attorneys
Richard Pratt v. S.D. Warren- (attached)- The Workers' Compensation Board Appellate Division recently issued a decision that offers an unusual interpretation of the principle of res judicata. The decision in Pratt v. S.D. Warren Co., Dec. No. 23-1, is attached.
This case has a complicated litigation history. A 2012 decree established that the employee had a 2004 right shoulder injury, a 2007 left shoulder injury, and a 2011 low back injury, but only the low back injury contributed to his partial incapacity. A 2017 decree, affirmed by the Appellate Division in 2019, ruled that the employee satisfied his obligation to apply for Social Security retirement benefits by discontinuing the retirement benefits he was already receiving and deferring them to age 70. In the 2017 decision the ALJ ruled that at age 70, the employer would be entitled "to offset 50% of the Social Security benefit ultimately received."
After the employee began receiving his benefits at age 70 (increased by COLAs and by separate delayed retirement credits), the Employer offset 50% of the benefit he ultimately received. The employee filed a petition for review and a petition to determine social security offset. The employer requested a permanent impairment determination in response to the petition for review, seeking a ruling that the employee's partial incapacity benefits were subject to the applicable durational limit on partial. A permanent impairment opinion was placed in evidence stating that the employee had 10% PI from his 2011 back injury and 2% PI for each of his prior shoulder injuries, resulting in combined PI of 14%.
For a 2011 injury, a permanent impairment determination can include impairment caused by prior injuries that "contribute to the employee's incapacity." The employer argued that the 2012 determination that the prior shoulder injuries do not contribute to the Incapacity was binding under the principals of res judicata and collateral estoppel, and there was no comparative medical evidence showing that a change had occurred; therefore, the shoulder PI could not be stacked with the back injury PI. The ALJ disagreed and found that the PI exceeded the 12% threshold, and the appellate panel affirmed, reasoning that permanent impairment was not at issue in 2012, even though incapacity was at issue, and therefore collateral estoppel did not apply to the incapacity determination in the 2012 decree.
The panel also ruled that the 2017 decree's statement that the employer would be entitled to a social security retirement offset based on the "benefit ultimately received" was inconsistent with section 221's disallowance of coordination of COLA increases granted after the benefits are coordinated, and that because the employer coordinated benefits for one month at age 66, before the employee deferred his Social Security retirement, the Employer is not allowed to offset the COLA increases that applied during the four years while the employee was not receiving Social Security retirement benefits.