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A long-time firefighter’s unsuccessful earlier claim that he was entitled to TTD benefits for five weeks of lost time in 2011, during which he recovered from the surgical removal of a malignant melanoma on his shoulder, did not mean that a subsequent claim for permanent total disability benefits—the melanoma metastasized in 2014 to claimant’s brain—was barred by collateral estoppel or res judicator, held a Washington appellate court. The court noted that for these equitable defenses to apply, the party must have had “sufficient motivation for a full and vigorous litigation of the issue” [citing Hadley v. Maxwell, 144 Wn.2d 306, 315, 27 P.3d 600 (2001)]. The court ruled that five weeks TTD would not have produced the sort of motivation to prevail on the issue as the subsequent TTD application. Moreover, the court said that for res judicata purposes, there was not a concurrence of identity in subject matter between the firefighter's application for TTD benefits and his application for PTD because each application requested different kinds of relief implicating different forms of compensation. Important as well was the fact that the factual basis for PTD—the brain tumor—was not discovered until 2014, three years after his application for TTD benefits was submitted. The facts underlying the firefighter's application for PTD benefits and the relief that he sought thereunder could not have been litigated at the time of his 2011 application.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance.
See Weaver v. City of Everett, 2018 Wash. App. LEXIS 1621 (July 16, 2018)
See generally Larson’s Workers’ Compensation Law, § 127.07.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law