ORDER DENYING DEFENSE OF RES JUDICATA
Petitioner seeks attorney's fees and penalty relating to
temporary total disability benefits awarded by the WCC in a
prior case. He did not seek attorney's fees and penalty
on that prior petition. Respondent insurer argued
petitioner's present request was barred by the doctrine
of res judicata.
The doctrine of res judicata bars any subsequent action
between the same parties upon the same claim or demand.
Western Montana Products Ass'n v. Hydroponics, 147 Mont.
156, 161, 410 P.2d 936, 939 (1966). A companion doctrine --
collateral estoppel -- bars any subsequent action between the
same parties "as to matters that were necessarily
litigated and determined although the claim or demand in the
subsequent action is different." Id. Relying on
Loney v. Milodragovich, Dale & Dye, 273 Mont. 506, 905
P.2d 158, 161 (1995), the insurer argued collateral estoppel
extends to other matters "the party had an opportunity
to litigate." WCC holds that the "opportunity to
litigate" doctrine applies only to issues that are
"inseparable" from the issues actually litigated.
Where the rules of the WCC contain no requirement that
requests for attorney's fees and penalty be joined with
substantive claims for benefits, the present petition is not
Defenses: Collateral Estoppel. Where the
rules of the WCC do not require that requests for
attorney's fees and penalty be joined with substantive
claims for benefits, res judicata or collateral estoppel do
not prevent claimant from claiming, in a second petition,
attorney's fees and penalty relating to benefits awarded
on an earlier petition.
Defenses: Res Judicata. Where the rules of
the WCC do not require that requests for attorney's fees
and penalty be joined with substantive claims for benefits,
res judicata or collateral estoppel do not prevent claimant
from claiming, in a second petition, attorney's fees and
penalty relating to benefits awarded on an earlier petition.
Richard Ware (claimant), seeks attorney's fees and a
penalty with respect to medical benefits the respondent,
State Compensation Insurance Fund (State Fund), initially
denied but later agreed to pay. He also seeks attorney's
fees and a penalty with respect to temporary total disability
benefits awarded by this Court in a prior proceeding, WCC No.
9508-7361. In its response, the State Fund affirmatively
alleges that the requests for attorney's fees and a
penalty are barred by the doctrine of res judicata.
The Court ordered the defense briefed. Having received briefs
from both parties, the issue is deemed submitted for
facts pertinent to the State Fund's defense are contained
in the Court file in the prior proceeding, Richard Ware
v. State Compensation Ins. Fund, WCC No. 9508-7361
(Ware I). I take judicial notice of the file and the
proceedings reflected therein. Rule 201, Mont. R. Evid.
reflected in the Court's Findings of Fact, Conclusions of
Law and Judgment entered May 15, 1996, in Ware I,
the claimant suffered an industrial injury to his shoulders
in early November 1992. He continued to work at his
time-of-injury job for another month, when he then moved to
Missouri. After his move to Missouri, he did some light-duty
carpentry and odd jobs but continued to experience pain in
both shoulders. In January 1995, claimant's treating
physician referred claimant to an orthopedic surgeon who,
after examining claimant, recommended shoulder surgery.
with the surgical recommendation, the State Fund requested an
independent medical examination (IME). The IME was conducted
on April 1995. The IME physician did not feel surgery was
necessary and recommended continued conservative treatment,
including physical therapy.
claimant's treating physician followed the IME
recommendation for further conservative treatment but
claimant's condition did not improve. Surgery was again
recommended and finally, in late August or early September
1995, the State Fund authorized the surgery. Surgery was
performed September 19, 1995.
Ware I the petitioner sought temporary total
disability benefits. The surgery was not at issue. He did not
request the ...