The Old Refrain, “What a Difference a Day Makes,” Doesn’t Quite Work with a Worker Injury Claim

Jul 8, 2015 | Claims Process

The Old Refrain, “What a Difference a Day Makes,” Doesn’t Quite Work with a Worker Injury Claim – Casey Smith worked for Wyndham Worldwide Resorts in Aspen, Colorado, during the X Games. He claimed that he injured his shoulders, neck, and collarbone on January 27, 2013, while carrying big pots of soup on slippery terrain.

Worker Injury Claim

In November 2013, he went to a Hearing represented by an attorney. However, the Administrative Law Judge denied the claim based upon the opinion of Dr. Ridings, who stated: “that the medical records and examination did not support an injury that occurred in January of 2013 and the claimant did not suffer an acute injury or an occupational disease.”

Having lost the hearing, the claimant re-filed another claim for compensation for an injury occurring on January 28, 2013, to his neck and shoulder due to “tenuous working conditions in the kitchen and the snow-blown icy and slippery surfaces all over the hillside.”

The Insurance Carrier moved to dismiss that claim “because the claim involved the same facts, parties, witnesses, injuries, mechanisms of injury, and medical benefits as was sought in the prior claim that was denied and dismissed by ALJ Stuber. The ALJ agreed and granted the respondents’ motion. The ALJ found that there was no new genuine issue as to any material fact that had not been previously litigated and decided. The ALJ, therefore, granted the respondents’ motion and vacated the hearing set on the claim.”

Mr. Smith appealed, but the insurance carrier moved to dismiss the claim because it had the same body parts and the same mechanism of injury. The only difference was the date of injury. In addition, the claimant requested the same medical care and the same lost wages that had been denied at the earlier hearing.

The Administrative Law Judge, and later the Industrial Claims Appeals Panel, dismissed Mr. Smith’s second claim based upon the doctrine of claim preclusion.” This doctrine permits an Administrative Law Judge to dismiss a second claim because of an earlier ruling in a prior claim. “For a claim in a second proceeding to be precluded by a previous judgment, there must exist (1) finality of the first judgment, (2) identity of subject matter, (3) identity of claims for relief, and (4) identity of or privity between parties to the actions. Cruz v. Benine, 984 P.2d 1173, 1176 (Colo.1999).”

Related: 5 Workers’ Comp Mistakes Injured Workers Make

What a Difference a Day (Doesn’t) Make

In the second claim, the ICAP noted, “The claimant did not allege any new facts or issues, and the only difference is that the claimant listed the date of injury on the new application for hearing as one date different than the date of injury listed on his prior application. Nor does the claimant dispute the identity or privity between parties to the action. In both actions, the claimant sought benefits against Wyndham Worldwide Corporation as insured by Liberty Mutual.”

The effect of claim preclusion is to force injured workers to bring ALL claims against the employer at the beginning. Parties who come to a hearing and lose are not allowed to come back to court and seek the same benefits under a different theory. Yet another reason why, if you are a Colorado worker who needs help with an on the job injury – that you should call us for a free consultation. We help injured workers every day. It’s our passion.

Additional Resource: When is a Workers’ Compensation Order Reviewable – The Goose’s Sauce May Not Apply to the Gander