Doctrines of res judicata and collateral estoppel did not bar review petition to add left ulnar nerve injury because a judge in prior decision rejected medical expert’s opinion that claimant’s symptoms were caused by injury to left ulnar nerve.

A Workers’ Compensation Judge issued a decision granting a claim petition and recognizing work-related injuries in the nature of left wrist and elbow strain and sprain and contusion, bruising of the left wrist, and left post-traumatic carpal tunnel syndrome. The claimant’s benefits were suspended when he returned to his pre-injury position with no loss of wages. Later, the claimant filed a review petition to add injuries as work-related and sought a reinstatement of benefits as of June 26, 2018.

The employer filed a termination petition, alleging the claimant had fully recovered. The judge granted the claimant’s petition and added a left brachial plexopathy and left ulnar neuritis to the work injury. The judge also dismissed the employer’s termination petition. The employer appealed to the Appeal Board, arguing that the finding of a left ulnar nerve injury was barred by res judicata or collateral estoppel. According to the employer, the judge’s findings in granting the review petition were contrary to facts previously found by the prior judge, who had granted the claim petition. The Board, however, affirmed, and the employer appealed to the Commonwealth Court.

At the Commonwealth Court, the employer argued that a review petition to add a left ulnar injury was barred because the prior judge had rejected a medical expert’s opinion that the claimant’s symptoms were the result of an injury to the left ulnar nerve. The court noted from reviewing the prior judge’s decision that the expert did not even give such an opinion as to causation and, in fact, had said that the condition was congenital. Moreover, they noted that the prior judge specifically rejected the expert’s testimony that the claimant sustained only a work-related wrist contusion and contusion of the elbow and had fully recovered. The court, thus, held that the doctrines of res judicata and collateral estoppel did not apply in that there was not an identity of issues, as the claimant alleged different injuries in the claim petition from those sought in the review petition in light of subsequent medical developments.

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}