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Grenz v. Fire And Casualty of Connecticut

Court of Workers Compensation of Montana

July 7, 1997

SAMUEL J. GRENZ Appellant
v.
FIRE AND CASUALTY OF CONNECTICUT Respondent.

          Submitted Date: May 7, 1997

          ORDER ON APPEAL

          Mike McCarter Judge

         Summary: In this latest of a series of cases commenced by Grenz, a pro se claimant, a hearing officer for the Department of Labor dismissed his latest claim for occupational disease benefits on the ground of res judicata. Claimant argues that his present contention is that a claim he filed in 1984 encompassed an occupational disease claim. He alleges this claim has not yet been litigated.

         Held: Claimant has not yet litigated whether his 1984 claim for compensation encompassed an existing occupational disease. The DOL erred in dismissing the petition.

         Topics:

Defenses: Res Judicata. WCC reversed DOL determination that res judicata barred pro se claimant from arguing that his 1984 elbow injury claim encompassed a separate and independent claim for occupational disease benefits. (Note: WCC affirmed in Grenz v. Fire and Casualty of Connecticut, 1998 MT 35N, No. 97-503 (Grenz V) (non-citeable opinion)

         Appellant, Samuel J. Grenz (Grenz), appeals from a December 27, 1996 Order of the Department of Labor and Industry (Department) dismissing his latest claim for occupational disease benefits. As in recent cases, Grenz prosecutes this case pro sé (without an attorney).

         Factual Background

         I. Prior Cases.

         This case is the latest in a series of cases commenced by Grenz. Grenz injured his elbow on August 24, 1984, while working for American Stud Company. He filed a claim for compensation with respect to the injury and later alleged that his injury was the cause of degenerative arthritis affecting numerous parts of his body. In 1990, this Court determined that claimant's degenerative arthritis was not causally related to his 1984 injury and denied his claim for permanent total disability benefits. The Supreme Court affirmed. Grenz v. Fire & Casualty of Connecticut, 250 Mont. 373, 820 P.2d 742 (1991) (Grenz 1[1]).

         Grenz then filed a new petition alleging that his degenerative arthritis was "caused [by] work-related micro-trauma separate and apart from, and subsequent to, the August 1984 injury." Grenz v. Fire and Casualty of Connecticut, 255 Mont. 121, 841 P.2d 494 (1992)(emphasis added) (hereinafter "Grenz II"). This Court dismissed the petition on res judicata grounds, citing Grenz I. On appeal the Supreme Court reversed, holding that the issue presented in the prior case was not the same issue as presented in the second petition. Grenz II. In the first case, the issue was the relationship of Grenz's arthritis to his August 1984 elbow injury. The petition in Grenz II requested compensation based upon alleged microtrauma occurring after the injury.

         In Grenz II the Supreme Court remanded with instructions to determine whether the microtrauma claim was time barred. Upon remand this Court determined that indeed it was. The Supreme Court affirmed the determination in Grenz v. Fire and Casualty of Connecticut, 260 Mont. 60, 857 P.2d 730 (1993) (Grenz III).

         At the same time he was pursuing his microtrauma claim under the Workers' Compensation Act, Grenz was also pursuing a companion claim for occupational disease benefits. That claim, which was also based on microtrauma occurring subsequent to the elbow injury, was presented to the Department, which concluded that it also was time barred. The Department's determination was affirmed by this Court. Once more, Grenz appealed. Again the Supreme Court affirmed. Grenz v. Fire and Casualty of Connecticut, 924 P.2d 264 (Mont. 1996) (Grenz IV).

         II. The Latest Petition.

         Undeterred by the prior decisions, on November 12, 1996, Grenz filed yet another petition with the Department. In his petition he alleges that he is entitled to occupational disease benefits under his 1984 claim for compensation. His petition succinctly summarizes his legal theory for his latest action:

The department did not, in 1984, make a distinction between an occupational disease and an industrial injury for purposed [sic] of claim filing. The same claim form was utilized for both types of claims and still is. Insurers presented with a claim could elect to treat it as either an injury claim or a disease claim. A worker did not need technical legal knowledge about whether his condition was a disease or an injury in order to file a claim. He simply needed to file timely, which Grenz did on August 22, 1984, once a claim was filed, the difference between an injury and a disease could become important with regard as to what benefits might be due, if there is a dispute, a claim submitted under one category can be determined to fit another category, after all "a claim is a claim is a claim." [Quotes in original; emphasis added.]

DLI Record: Petition for Hearing at 3.

         Decision Below

         On December 4, 1996, the respondent insurer (insurer) moved to dismiss the latest petition on res judicata grounds. DLI Record: Motion to Dismiss Petition for Hearing. The insurer argued that Grenz I is res judicata since it determined that Grenz's arthritis was not causally related to his 1984 elbow injury. DLI Record: Motion to Dismiss Petition for Hearing at 11. It further argued that Grenz III is res judicata with respect to any occupational disease claim because the Montana Supreme Court determined in that appeal that "Mr. Grenz never informed his employer that he was suffering from arthritis or that his work was aggravating his degenerative condition." Id. at 12. Finally, the insurer requested that Grenz be enjoined from filing further complaints unless signed by an attorney.

         On December 27, 1996, the Department's hearing officer dismissed the petition. In relevant part, the hearing officer held:

Simply put the claimant's elbow injury and occupational disease claim have be[en] litigated to death and are dead. No issue of material fact exists and the insurer is entitled to have this matter dismissed because the Court has already determined in Grenz v. Fire and Casualty of Connecticut, 53 St. Rep. 898, 924 P.2d 264. (Decided 9-17-96) that the claimant's occupational disease claim is bared [sic] by the statute of limitations. In this latest petition, the claimant can not be allowed to approach this matter from a new angle indicating that he filed an occupational disease claim in 1984 or 1985 when he did not. The claimant cannot be allowed to approach and litigate this claim for benefits from any more angles. The claim appears to be as dead as dead can be. The motion to dismiss is properly granted.
The claimant, relying upon the decision in Grenz v. [F]ire and Casualty of Connecticut, WCC No 9310-6922, April 21, 1994, indicates in his Reply to Insurer's Motion to Dismiss Petition for Hearing that he is entitled to a hearing to "raise issues to combat the insurer's contention." (Reply p. 15) The claimant was provided a hearing on September 19, 1994 before the below signed hearing officer related to his claim for benefits under the Occupational Disease Act . That very hearing and the decision reached holding the claimant was bared [sic] by the statute of limitations applies in this case. Grenz v[.] Fire and Casualty of Connecticut, 53 St. Rep. 898, 924 P.2d 264. (Decided 9-17-96) The claimant's occupational disease claim is bared [sic] by the statute of limitations.

Id. at 3; underlining and bold in original. The hearing officer went on to grant the insurer's request that Grenz be enjoined from filing further petitions:

The claimant is additionally hereby enjoined from filing any further petitions for hearing with the Department relating to his elbow and degenerative arthritis condition as caused from or during employment with the insured unless such filing is signed by an attorney admitted to the Montana State Bar or the complainant obtains filing approval from the Hearing Bureau, Department of Labor and Industry.

Id. at 5.

         Notice of Appeal

         On January 21, 1997, Grenz filed his Notice of Appeal. The appeal sets out 15 separate grounds of alleged error. An Amended Notice of Appeal, filed January 28, 1997, amends the 15th ground and raises an additional, 16th ground.

         Record on Appeal

         The record on appeal consists of the Department's file, including some 25 exhibits contained in a separate section of the file. The ...


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