We have all experienced the long road leading the trial. The Claimant requests income benefits from his date of accident to the present and continuing.
We have all experienced the long road leading the trial. The Claimant requests income benefits from his date of accident to the present and continuing. We exchange formal discovery, interview witnesses, depose the Claimant – possibly a doctor or two, review mountains of medical records, and finally, try the claim. The hard work all pays off when the Administrative Law Judge finds the Employer/Insurer have met their burden, or defended the claim strongly enough that the Claimant cannot meet his burden. We take a breath, and wait for the Appeal that might come – but in the absence of that, we might assume it is safe to declare victory and move on.
But just when you thought it was safe to close your file, it resurrects. How? This particular scenario has plagued defense attorneys for quite some, and continues to do so, since it has not been properly resolved by the Board. The reason is because the Claimant, who previously requested benefits from his date of injury to present and continuing, has now requested benefits starting the day after the ALJ’s Award!
Generally speaking, the long-established doctrine of res judicata should prevent a claim from being re-tried in a workers’ compensation setting. This is set forth within the Code and within case law, that when court of competent jurisdiction issues judgment, it shall be conclusive between the parties as to all matters that were heard, unless it is reversed or set-aside. Fishten v. Campbell Coal Co., 95 Ga. App. 410, 98 S.E.2d 179 (1957) and O.C.G.A. § 9-12-40.
In order to successfully assert a res judicata defense, we must show three things: (1) that the identify of the parties in the second trial are the same, (2) that the cause of action is the same, and that (3) there was already an adjudication by a court of competent jurisdiction. Firestone Tire & Rubber v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).
In our example, meeting at least two of the prongs is easy enough. We can certain show that it is the same Claimant suing the same Employer/Insurer. We can also show that a court of competent jurisdiction (the Board) has already issued a judgment regarding the issues. The trick is showing that the exact same issues are being litigated – in other words, showing that the Claimant is simply trying to take another bite at the apple.
In our example, the Claimant requested benefits from his date of accident to the present and continuing. After the Award came out, he requested benefits (for the same date of accident) starting the day after the Award was issued. Here, the Claimant attempted to show that he was litigating different issues because the start date of benefits moved. But, as is most often the case, the words “and continuing” were used in his first request. A simple read of that phrase would lead most people to think that “and continuing” means “and any date after the Award for so long as the facts are the same.” It makes sense after all – that when a Claimant requests benefits to be ongoing and continuing, and that same request is denied – that it means that so long as there is no change in condition, a final judgment has been made that includes any period of time after the Award for that specific injury date.
Why would a Claimant try this when the issue has obviously been litigated? The answer is that often times, when issuing an Award, the ALJ may well set out a roadmap of what the Claimant did wrong in the claim. Armed with this roadmap, the Claimant might then try to rectify the mistakes, and create enough evidence to satisfy his burden the second time around. For example, the Judge may have found that the Claimant has work restrictions, was terminated for cause, and failed to satisfy his Maloneyburden to show a diligent job search.
Having all this pointed out to him, the Claimant can now go out, and try to make a diligent job search, by disclosing his restrictions, applying for appropriate jobs, and keeping a record of those jobs where was turned down because of his restrictions.
By requesting benefits from the date after the Award, as opposed to the earlier requested date of injury, the Claimant is attempting “change” the issues enough to avoid a defense of res judicata.
We maintain that this is unfair, and not at all within the prescribed methods of disputing an Award. If the Claimant is not satisfied with an ALJ Award, the Act allows for them to file a Motion for Reconsideration, or even an appeal to the Appellate Division. In either of those cases, there is a procedural allowance for the Claimant’s position to be reconsidered. But by requesting a hearing over the same issues, with a mere date change, the Claimant is trying to force the Board to continue to have jurisdiction over a matter that had already been disposed of. And with the exception of an appeal or a Motion to Reconsider, the only other time the Board has continuing jurisdiction is where there has been a change of condition (based on the same accident date), and the facts support an actual change. Gaddis v. Ga. Mountain Contractors, 213 Ga. App. 126; 443 S.E.2d 710 (1994).
As defense attorneys, we understand that there may be bona fide circumstances where the Claimant’s case may well need to be revisited by the Board. We often request hearings to show a change of condition for the better; for example where, in an accepted claim, the Claimant has been released to light-duty, suitable work is available with the Employer, and the Claimant has unjustifiably refused the employment. But this is totally different than trying the same claim, with the same facts, with the same date of accident, and merely changing the date for when benefits are requested.
Our small victories include a recent ruling by the Board, where a Claimant received a judgment from one judge, and attempted to try his claim again before another one. When the second judge issued a Show Cause order directing the Claimant to show why his claim was not barred by the doctrine of res judicata, he could not do so, and the judge dismissed his second hearing request. While the Claimant did not change the dates of benefits in his second request, the reasoning behind the second judge’s decision is applicable even if he did – that unless the parties enter into a new agreement, or there is a change of condition, res judicata will bar his claim from being heard a second time. Complete Auto Transit, Inc. v. Davis, 101 Ga. App. 849 (1960).
As aforementioned, this exact issue has not yet been determined by the Board because the issues have often resolved prior to the hearing. But, from a practical standpoint, when a request for a second hearing on essentially the same issues arises, the Employer/Insurer should file a Motion to Dismiss and raise the res judicatadefense as soon as possible. Otherwise, we face having to re-conduct all sorts of discovery and incur fees and costs in re-trying what is essentially a disposed claim. Hopefully, the Board, when faced with these issues will grant such Motions, and eliminate the chance that the Claimant may take a second bite at the apple.