Motion to dismiss employer’s termination petition denied; prior decision established claimant as a displaced worker.

Claimant’s counsel filed a motion to preclude the Board from hearing the employer’s petition seeking to terminate total disability benefits on the grounds that it was barred by the legal doctrines of res judicata and collateral estoppel. Specifically, the motion asserted that a 2012 Board decision had determined that the claimant was a prima facie displaced worker. The Board denied the claimant’s motion, finding that the principles of res judicata and collateral estoppel would only prevent it from reconsidering the correctness of the 2012 decision. Those legal principles would not prevent the Board from adjudicating the current petition, which deals with the wholly separate issue of whether the claimant at the present time continues to be a prima facie displaced worker. The employer’s counsel indicated that they were prepared to present new evidence in the form of a Labor Market Survey showing that the claimant was employable within the current job market and, thus, not a displaced worker. Therefore, the Board concluded that the employer was well within its rights in filing the termination petition in order to have the Board reconsider whether the claimant’s current status had changed such that total disability benefits should be terminated.

_{Case Law Alerts, 4^th Quarter, October 2015}

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