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Ware v. State Compensation Insurance Fund

Court of Workers Compensation of Montana

April 25, 1997

RICHARD WARE Petitioner
v.
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for HAGEMAN CONSTRUCTION Employer.

          March 28, 1997

          ORDER DENYING DEFENSE OF RES JUDICATA

          Mike McCarter JUDGE

         Summary: 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.

         Held: 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 barred.

         Topics:

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.

         Petitioner, 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 decision.

         Factual Background

         The 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.

         As 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.

         Presented 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.

         The 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.

         In Ware I the petitioner sought temporary total disability benefits. The surgery was not at issue. He did not request the ...


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