Zabel v. Gustavus Adolphus College, 101218 MNWC, WC18-6185

Docket Nº:WC18-6185
Case Date:October 12, 2018
Court:Minnesota
 
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LORI ZABEL, Employee/Appellant,
v.
GUSTAVUS ADOLPHUS COLLEGE and TRAVELERS GROUP, Employer-Insurer/Respondents,
and
MAYO CLINIC, ST. PAUL ELECTRICAL WORKERS’ HEALTH CARE PLAN, and RIVERVIEW CLINIC, Intervenors.
No. WC18-6185
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
October 12, 2018
         EVIDENCE – RES JUDICATA; PRACTICE & PROCEDURE – DISMISSAL. The compensation judge erred in concluding that the employee’s current claim for an unadjudicated, new, and distinct injury was barred by res judicata pursuant to Schuette v. City of Hutchinson, 77 W.C.D. 157 (W.C.C.A. 2016), summarily aff’d (Minn. Mar. 8, 2017).           Yuri Jelokov, Farrish Johnson Law Office, Chtd., Mankato, Minnesota, for the Appellant.           Kenneth B. Huber, Law Offices of Kelly R. Rodieck & Associates, St. Paul, Minnesota, for the Respondents.           Determined by: Patricia J. Milun, Chief Judge, David A. Stofferahn, Judge, Gary M. Hall, Judge           Compensation Judge: James F. Cannon          Reversed.           OPINION           PATRICIA J. MILUN, Chief Judge.          The employee appeals from the compensation judge’s order dismissing her claim petition with prejudice on the grounds of res judicata. We reverse the judge’s order.          BACKGROUND          While employed as a post office clerk for the employer, Gustavus Adolphus College, on April 18, 2013, the employee, Lori Zabel, slipped and fell on ice, suffering a brain/concussion injury as a result of striking the back of her head. The injury was admitted and benefits were paid. Arguing the employee’s injury was temporary and had resolved, the employer and insurer ceased paying wage loss benefits. The employee’s objection to the discontinuance was heard by a compensation judge on March 7, 2017. By Findings and Order dated April 25, 2017, the judge found “the employee’s symptoms relative to her brain/concussion injury of April 18, 2013 were temporary in nature and fully resolved as of May 19, 2014,” and denied the employee’s claim for temporary total disability benefits from August 2, 2016, through the date of the hearing. (April 25, 2017, Findings and Order at Finding 24.) This Findings and Order was not appealed.          In his 2017 Findings and Order, the compensation judge described medical treatment the employee received on July 13, 2015. On that date, the employee presented at the Mayo Clinic emergency room reporting symptoms of nausea and vertigo since having had a concussion one year ago. She was diagnosed with migraine headache and vertigo. (Id. at Finding 9.) In a later finding, the judge described treatment received on July 31, 2015, where the employee complained of a headache starting on July 13, 2015, when she “[g]ot sick, lost [her] balance and ran into a wall.” (Id. at Finding 10.) The findings also state that the employee denied a new injury in July 2015. (Id. at...

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