Finding that the employer had showed no change in the claimant's medical condition, the Board dismisses the employer's termination petition by granting the claimant's motion to dismiss the petition pursuant to the doctrine of collateral estoppel.

The claimant suffered a compensable work injury on May 28, 1992, and was receiving ongoing compensation for total disability. The employer had filed a review petition in October 2004, which was denied by the Board. In its June 20, 2005, decision, the Board found that the claimant's medical expert was credible in establishing that the claimant could not work on a regular basis.

The petition which gave rise to this litigation was filed in August 2011 and, again, was a review petition alleging that the claimant was capable of working with restrictions. Following the close of the employer's case-in-chief, claimant's counsel made a somewhat unusual motion for dismissal pursuant to the doctrine of collateral estoppel, arguing that the employer failed to show a change in the claimant's condition since the time of the prior decision.

The Board found that the employer had, in fact, failed to show a change in the claimant's medical condition sufficient to warrant a termination of total disability benefits. The Board found that all four elements of collateral estoppel were present, specifically: (1) the issue of the claimant's inability to work had been decided in the 2005 decision; (2) the prior action was fully adjudicated on the merits; (3) the parties were the same in the prior and present proceedings; and (4) the employer had a full and fair opportunity to litigate the termination of total disability benefits. Therefore, the Board granted the claimant's motion to dismiss the termination petition, allowing the claimant to receive ongoing total disability, and also awarded counsel fees and medical witness fees.

Case Law Alert - 4th Qtr 2012