Mary Low v. Nestle Waters North America, Inc.– The Appellate Division affirmed the ALJ’s granting of Petition for Award and Petition for Restoration where an earlier decision found work-related injury had resolved. In Low v. Nestle Waters North America, Inc., Dec. No. 24-01, Ms. Low sustained a work related injury on 5/11/09 when she tripped and fell down steps. A 2011 decree found she sustained significant aggravation of preexisting right shoulder, upper back, arm and neck myofascial syndrome. A 2014 decree terminated benefits where the ALJ found that by 2012 the myofascial aggravation had resolved and Ms. Low was suffering from non-work related fibromyalgia.

Recently, the employee filed Petitions for Award and Restoration for incapacity resulting from CTS and Thoracic Outlet Syndrome (TOS) allegedly caused by the 2009 fall on the steps. The employer raised res judicata as a defense. Based on a board IME and the employee’s testimony of worsening symptoms, the ALJ rejected the res judicata defense, finding that the 2009 fall aggravated her preexisting CTS and TOS. The Appellate Division affirmed, citing the Wacome decision which held that the employee was not precluded from claiming a different injury from the same occurrence where the prior adjudication addressed a different condition, as well as Oleson, which held that claim preclusion should not bar claims that might have tried but were neither litigated or decided in prior litigation.

The Appellate panel also affirmed the ALJ’s finding that a change in circumstance existed to address incapacity since the 2014 decree based on the Board IME’s comparison of Ms. Low’s 2014 diagnosis with her current condition and the employee’s testimony of worsening condition.

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Daniel F. Gilligan