The Claimant testified in person. He is 59 years old. He has been employed at Johnson Controls for 36 years.
The claimant works on an assembly line and must lift automotive batteries from a forklift pallet to the assembly line and then return the batteries to the skid. This is called "stacking on" and "stacking off".
He said he spent 75 % of his time in the stacking off battery process. This is manually picking up batteries and placing them on a skid three-to-four layers high. He would put one layer of batteries on the skid, then two sheets of wafer board between this and the next layer of batteries up to four layers high. There would be 54 to 66 batteries on a skid. Each battery weighed on average 80 pounds. He averaged 4,000 batteries a day. The total would fluctuate between the 3,600 to 4,500 batteries per day.
On August 10, 2009 in Injury Number 03-142166, Mr. Trimmer had a hearing with Johnson Controls, Inc., concerning the same parties, the same body part, the same date of
occurrence, the same proposed medical treatment, and much of the same medical evidence. In Injury Number 03-142166, the claimant attempted to establish an injury to his left shoulder that was caused by an accident (a fall) at work.
The claimant argues that the employer should be barred from raising the issue of res judicata because it did not raise the issue in its answer as an affirmative defense. The claimant is correct that res judicata is an affirmative defense, however, it was raised as an issue at the hearing and was litigated. See Snow vs. Hick's Brothers Chevrolet, Inc., 480 SW2d 97 (Mo.App. 1972) Pleading an affirmative defense of a workers' compensation case by way of an answer is not the exclusive manner in which a defense may be raised. It was enough of a defense to be litigated whether pled or not to preserve the issue. The claimant's attorney had to be aware of the issues of res judicata and collateral estoppels when he first investigated the case and it was not a surprise to him and he was not prejudiced by the failure to raise it in an answer.
In order for res judicata to apply the following four elements must be satisfied:
(1) the identity of the thing sued for; (2) the identity of the cause of action; (3) the identity of the parties to the action; and (4) the identity of the quality of the person for or against whom the claim is made.
The Employer argues that included within the doctrine of res judicata is the principle that the earlier judgment is conclusive not only as to matters actually determined in the prior action, but also as to other matters which could have been properly raised and determined therein. King General Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter-day Saints, 821 S.W. 2d 495, 501 (Mo. en banc 1991). However a crucial component of the doctrine of res judicata in this regard is that the two actions must be on the same cause of action. Terre Du Lac Assoc., Inc. v. Terre Du Lac, Inc., 737 S.W. 2d 206, 212 (Mo. App. 1987); Curnutt v. Scott Melvin Transport, Inc., 903 S.W. 2d 184, 191 (Mo. App. 1995).
It is this component of res judicata that is the reason as to why res judicata is not applicable. While the parties are the same and the dates of injury are the same, the two claims are not the same. They are distinct and separate claims for which different evidence is required to establish them. Mr. Trimmer's first claim tried before this Court was presented as an accidental injury pursuant to R.S. Mo. §287.120. In this claim presently before the Court, Mr. Trimmer has alleged an occupational disease which is a distinct and separate claim pursuant to R.S. Mo. $\S 287.063 and \S 287.067$. Holaus v. William J. Zickell Company, 958 S.W. 2d 72, 77 (Mo. App. 1997). Because they are not the same cause of action, Mr. Trimmer was not required to raise his current claim with his original claim.
The case of Holaus v. William J. Zickell Company, supra, has some factual similarities to this case. In Holaus, the claimant initially filed a claim alleging that he had suffered a torn rotator cuff in his shoulder as a result of an altercation at work which caused his shoulder to hit a wall and thereby be injured. Almost four and a half years later, the claimant filed a second amended claim in which he then alleged an occupational disease due to repeated heavy lifting and carrying with an accident/incident date which was the same date as the altercation. The claimant's amended claim still contained the allegations of the altercation and resulting injury.
In response the employer/insurer raised the defense of the statute of limitations. Following a hearing the ALJ found that:
[A]lthough employee did show that he suffered an injury on that date, he did not prove that the particular blow he suffered on that date caused the torn rotator cuff with any reasonable degree of medical probability.
Id. at 77 .
The ALJ did not address whether the employee suffered from an occupational disease as he found the claim was barred by the statute of limitations. The claimant argued that the second amended claim related back to the original claim because he was simply amplifying the original claim and was not pleading a new cause of action. The ALJ disagreed, specifically finding that the new allegation of occupational disease represented a distinct and separate claim covered specifically under separate sections of the Missouri Workers' Compensation Law from that of an accidental injury. He