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Res Judicata Bars Re-litigation of Gradual Injury Claim

The WCB Appellate Division has just issued a decision affirming that res judicata bars gradual injury claims that were previously litigated and denied under a different date of injury. Tom Getchell at Troubh Heisler handled the defense.

In Gary Day v. S.D. Warren, Day had previously filed a petition asserting both an acute neck injury on 10/29/10 and a gradual neck injury on the same date. In 2013, after hearing, Judge Jerome granted the petition but found only an acute injury with no ongoing causation and awarded no benefits.

Day then filed new petitions, again claiming a gradual neck injury but claiming two later injury dates, 12/10/10 and 7/21/11. He claimed the same period of disability and relied on the same medical records as in the previous litigation. Judge Jerome denied his petitions on the basis that the prior decision barred his claims per the doctrine of res judicata.

Day appealed, but the Appellate Division panel upheld the denial, finding that his current allegations were essentially the same as asserted in his previous petitions. The panel noted that Day was claiming the same type of injury to the same body part from the same cause, and it held that a supportive §312 IME opinion from Dr. Graf did not overcome the res judicata defense.

If you have any questions about this or any other case, please let us know.

Thomas Getchell
Michael Richards
Daniel Gilligan
Attorneys at Law