The legal standard of res judicata is difficult to grasp in Workers’ Compensation.  The problem with res judicata (besides the funny name) is that a Claimant can file the same benefit again, even after being denied by the Judge, as long as the benefit is for a different time period. 

For the uninitiated, res judicata is the legal principle that prevents a Claimant from getting yet another day in court after the first lawsuit is concluded by filing the same claim again.  Res judicata is codified in section 440.25(4)(d), “where any benefit due but not raised at final hearing which is ripe, due, or owing at the time of the final hearing is waived.” 

In other words, a Claimant cannot get two bites of the apple. 

However, many adjusters, employers, and (ahem!) even some attorneys believe that this does not apply to permanent total disability claims.  Because the benefits being sought for last for an extended period of time (the rest of their life under the old act, or age 70 under the 2003 amendments), many Employer/Carriers view a win at a PTD trial to be penultimate.  However, the First DCA reaffirmed the res judicata principle and allowed a Claimant, who lost his PTD claim earlier, to file another PTD claim for a different time frame.

In Myers v. Hillsborough County School Board, Claimant filed a claim for PTD benefits from April 2000 to the present.  The JCC denied that claim in 2004.  Then in 2006, Claimant filed a new petition for PTD benefits from September 2005 to present.  The JCC denied the second the petition on the grounds of res judicata, Claimant already lost for PTD benefits.

The appellate court reversed, finding the new 2006 claim to involve a different time frame than the earlier denied claim.  The new claim was not ripe at the time of the earlier final hearing, therefore not barred by res judicata. 

The problem I have is that almost all PTD claims filed are from the date of MMI and continuing, as if Claimants seek these benefits forever.  Shouldn’t that be enough to trigger res judicata?  If a judge says a Claimant is not entitled to seek PTD benefits for the rest of their lives, then shouldn’t res judicata bar a new claim seeking PTD benefits for the rest of Claimant’s lives?

Either way, this should put Employer/Carriers on notice, even when they win a PTD final hearing.  The best precaution Employer/Carriers can do is to look at the potential of Claimant ever becoming PTD in the future and evaluate the claim accordingly for settlement.  Because, in the end (and as the title of this post suggests), just because Claimant lost PTD does not mean his claim has no value.

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