Res judicata: Knowing the Limits of Lifetime Medical Award
Lifetime medical award. These three words are a constant source of frustration for anyone who handles claims under the Virginia Workers’ Compensation Act. Once an award is entered in a claim, your claim has the possibility of remaining open and active for months, years, or even decades after their original injury. One particularly frustrating aspect of these eternal claims is the injured workers’ ability to revive a claim by seeking treatment for additional body parts or conditions long after benefits have been awarded.
In the recent case of O’Neil v. County of Henrico, JCN VA00001314915 (Oct. 21, 2019), the Commission reaffirmed that employers, insurance carriers, and third-party administrators have a handy tool that they can use to combat delayed claims for lifetime medical benefits – res judicata. In O’Neil, the Commission entered a lifetime medical award for a sternoclavicular strain on June 20, 2017 after the parties submitted agreement forms. Almost 16 months later, the claimant filed a new claim seeking to add injuries to the brachial plexus, neck, collarbone, left arm, left ear, and mouth. The Deputy Commissioner held that the claimant’s attempt to add these additional body parts was barred by res judicata.
Res judicata is not explicitly written into any section of the Virginia Workers’ Compensation Act. Instead, it is a judge-created doctrine that seeks to promote the public policy of bringing a reasonable end to litigation and to prevent the harassment of parties. The single term res judicata actually refers to two distinct concepts. The first concept, issue preclusion prevents any party from continuing to file claims on an issue already determined by court decision. For example, if an injured worker files a claim with the Commission and their claim is denied in a Judicial Opinion, they cannot wait one year and then file the exact same claim, hoping to get a different decision from a different judge. The second concept, claim preclusion, “forclos[es] litigation of a matter that has never been litigated, because of a determination that it should have been advanced in an earlier suit.” Migra v. Warren City School Dist. Bd. Of Ed., 465 U.S. 75, 77 n.1 (1984).
It is a common misconception that claim preclusion only applies after the parties go to a hearing, and the judge issues a written opinion regarding the merits of the case. The Virginia Court of Appeals has held that claim preclusion may apply even in cases where the Commission enters an award based upon the parties’ agreement before a hearing.
In the case of Starbucks Coffee Co. v. Shy, the Court of Appeals explicitly held that claim preclusion can arise any time that there is a “final judgement.” 61 Va. App. 229, 734 S.E.2d 683, 688 (2012). The Court also held that an “administrative” award can constitute a final judgment if it is not timely appealed. The Shy line of cases can be distinguished from cases like Advanced Auto v. Craft, Record No. 2321-13-1 (May 20, 2014). In Craft, the parties entered into an award agreement, even though the claimant had never filed a claim with the Commission. The Court held that no final judgment had been entered because there were no issues pending at the time the award was entered.
In O’Neil, the Deputy Commissioner relied upon the principles set forth in Shy and the claimant’s own testimony to find that the claimant’s claim was barred by claim preclusion. The claimant testified that, at the time her original award was entered, she already knew she had suffered all of the injuries that she tried to add in her subsequent claim 16 months later.
In order to prevent a claimant from filing successive claims to add body parts, it is important to establish that:
- There was contested matter pending before the Commission (i.e., did the claimant ever file a claim with the Commission?);
- After the claimant filed a claim, an award was entered by the Commission;
- Neither party sought a Request for Review or withdrew consent to the Award within 30 days;
- The award became final; and
- The subsequent claim seeks a lifetime medical award for a body part, condition, or disease that should have been the subject of the prior litigation.
It should be noted that the judge’s ruling in O’Neil does not bar an injured worker’s ability to add additional body parts or conditions after an award has been entered. A claimant may still file a request for hearing if:
- Only after an award is entered, they find out about a condition that is causally-related to the original accident.
- They allege that their injury is a compensable consequence – i.e., injuries to other body parts not injured at the time of the accident, but that “naturally flow from” the original injury.
Furthermore, while the principle of res judicata applies to periods of wage loss claimed by the claimant, it does not apply to a claimant’s request to amend their average weekly wage. The Commission, through case law, has established the right to amend average weekly wage if there is evidence of fraud, imposition, or simply mistake by any party.
There are a limited number of cases where claim preclusion will apply. However, whenever a claim to add a body part does appear on your radar, it is important to evaluate whether the claimant knew about injury to the claimed body part at the time that they entered into a prior award. The bottom line is, if you are going to be stuck with a lifetime of medical award, res judicata at least gives you an opportunity to limit the scope of medical treatment and exposure.
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