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.