Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kress v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

June 25, 1996

RALPH KRESS Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for JIM AND LOUIE BOUMA Employer.

          Date Submitted: May 9, 1996

          MIKE McCARTER, JUDGE

          ORDER PARTIALLY GRANTING MOTION TO DISMISS

         Summary: In a prior case (Kress 1), claimant sought to reopen his settlement with State Fund and requested medical benefits, temporary total disability benefits, and permanent partial disability benefits. The judgment in Kress 1 granted claimant's request for reopening and medical benefits, but denied his claims for temporary total or permanent partial benefits. Now, claimant requests temporary total disability benefits retroactive to his time of injury and continuing into the future. Respondent argues the request is barred by the doctrine of res judicata.

         Held: In Kress 1, claimant sought temporary total disability benefits but failed to carry his burden of proof. Under the doctrine of res judicata, any claim for temporary total disability benefits through the date of the prior trial is barred. Because it is possible that claimant's condition after the date of the prior trial changed to render him disabled, a claim that he was temporarily totally disabled after the prior trial is not barred by res judicata. However, claimant must prove there has been an aggravation of his disability.

         Topics:

Benefits: Temporary Total Benefits. Where claimant sought temporary total disability benefits in a prior case, and failed to carry his burden of proof, the doctrine of res judicata bars any subsequent attempt to obtain temporary total disability benefits for the period prior to the date of the last trial. However, because claimant's condition may have deteriorated after the previous trial, a claim for entitlement to temporary total disability benefits after the prior trial may proceed, but claimant must prove there has been an aggravation of his disability.
Defenses: Res Judicata. Where claimant sought temporary total disability benefits in a prior case, and failed to carry his burden of proof, the doctrine of res judicata bars any subsequent attempt to obtain temporary total disability benefits for the period prior to the date of the last trial. However, because claimant's condition may have deteriorated after the previous trial, a claim for entitlement to temporary total disability benefits after the prior trial may proceed, but claimant must prove there has been an aggravation of his disability.

         This is the second petition filed by the claimant, Ralph Kress, within the last two years. In the first action, Ralph Kress v. State Compensation Insurance Fund, WCC. No. 9505-7292, decided December 27, 1995 (Kress 1), this Court entered judgment granting Kress' request to reopen a 1993 settlement. The judgment further ordered the respondent, State Compensation Insurance Fund, to pay Kress' medical bills for treatment of his back and groin conditions. However, it denied Kress' alternative claims for temporary total disability benefits and permanent partial disability benefits.

         In his second petition, which this Order addresses, Kress seeks retroactive and prospective temporary total disability benefits. (Petition to Declare Petitioner Totally Disabled (etc) ("Petition").) While his petition in some places refers to "total disability benefits" (Petition at caption, introductory paragraph, ¶s VII, IX, and X), thereby failing to distinguish between "temporary" and "permanent" total disability benefits, read in its entirety his petition sets forth a claim for temporary total disability benefits only. In paragraph I Kress refers to this Court's prior judgment denying temporary total disability benefits. In paragraph II he alleges that his failure to provide sufficient proof of temporary total disability in the prior action was on account of his inability to pay for medical evidence. In paragraph VI, he specifically alleges that he is entitled to retroactive, current and ongoing temporary total disability benefits:

         Except as noted above, Petitioner has not worked since the 1991 accident and is entitled to retroactive temporary total disability benefits (less his actual income as noted above) from the date when the insurer terminated his temporary total disability benefits to the current time. Petitioner is further entitled to current and ongoing temporary total disability benefits.

         Finally, in his second and third prayers for relief, he requests that the Court:

2. Award Petitioner current total disability benefits.
3. Award Petitioner retroactive temporary disability benefits from the date of termination of said benefits less his income as noted in this petition to the current time.

         Based on Kress 1, the State Fund moves to dismiss the second petition on res judicata grounds. (Motion and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.