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Adair Public Schools v. Haley9/9/2005
Mandate Issued: 10/20/2005
__ P.3d __
PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION COURT SUSTAINED
Petitioners, Adair Public Schools and Compsource/OSAG (Employer), seek review of a Workers' Compensation Court (WCC) order which, among other things, found Respondent, Connie Haley (Claimant), permanently partially disabled (PPD) as a consequence of psychological overlay to her back injury.
Claimant's initial claim for compensation was filed on April 10, 2002. She alleged injury to her lower back from accidents on March 2 and 16, 2001. The nature of injury alleged was "trauma to back" and "depression and anxiety." Claimant subsequently filed an amended claim which added "psychological overlay" to her injuries.
When the claim was first tried on June 24, 2002, Claimant sought temporary total disability (TTD) benefits and medical treatment. She alleged both back injury and the psychological overlay. Employer denied all liability. In its July 10, 2002 order, the WCC found Claimant had sustained employment related injury to her back, but that she had not sustained psychological injury or overlay as a result of her back injury. The WCC reserved a TTD determination for future hearing and ordered Employer to provide Claimant with medical treatment for her back. There was no appeal from this order.
After Claimant reached maximum medical improvement, she sought PPD benefits and medical maintenance, again for both the back injury and for psychological overlay. This request was heard by the WCC on December 23, 2004. Employer admitted the lower back injury, but denied the claims for psychological overlay and medical maintenance. The court found Claimant had sustained psychological overlay and determined she was five percent PPD as a result of that impairment. A three-judge panel of the WCC unanimously affirmed that determination without modification. Employer seeks our review of that order.
Employer contends the "finding of consequential psychological overlay is barred by the doctrine of res judicata." The argument is that because the WCC, in its July 10, 2002 order, found Claimant had not sustained psychological injury or overlay, that issue was "not subject to subsequent consideration." This contention fails for several reasons.
First, Employer raises it for the first time here. At the trial in December 2004, the trial court noted from the bench:
It's my understanding, after an off-the-record conference with Counsel, that Claimant is asserting a consequential psychological overlay claim that has arisen since the Court's prior adjudication, and we're going to try that issue today. (Emphasis added).
Mr. Lott, you have no objection to trying that issue today, as far as - but you're denying the compensability of any subsequent psychological overlay, is that correct? (Emphasis added).
Employer's counsel stated his agreement to the court's articulation of the issue which was to be considered. It is clear the issue in the latter hearing was whether there was evidence to support a finding that Claimant sustained psychological overlay resulting from the back injury after that claim was initially denied. The issue decided by the initial denial was whether Claimant suffered from psychological overlay at that time. The issues are distinct factual determinations to be made in view of the evidence relating to the relevant periods and are not the same. It is Employer's burden to show the issue to be precluded was actually litigated. Miller v. Miller, 1998 OK 24, 956 P.2d 887. It cannot meet that burden.
Further, Employer faile
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