Grenz v


                                          Grenz v. Fire & Casualty of Conn.
                                               Decided Feb. 18, 1999
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 97-503

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1998 MT 35N

                                                      SAMUEL L. GRENZ,

                                                   Petitioner and Respondent,

                                                                      v.

                                   FIRE AND CASUALTY OF CONNECTICUT,

                                                   Respondent and Appellant.

                                 APPEAL FROM: Workers' Compensation Court,

                                   The Honorable Mike McCarter, Judge presiding.

                                                   COUNSEL OF RECORD:

                                                            For Appellant:

                                  Joe C. Maynard and David M. Wagner; Crowley,

                                     Haughey, Hanson, Toole & Dietrich; Billings,

                                                                 Montana

                                                           For Respondent:

                                    Samuel J. Grenz, Pro Se, Stevensville, Montana

                                         Submitted on Briefs: December 11, 1997



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 Grenz v


                                                  Decided: February 18, 1998

                                   Justice Regnier delivered the opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not
be cited as precedent but shall be filed as a public document
with the Clerk of the Supreme Court and shall be reported by case
title, Supreme Court cause number, and result to the State
Reporter Publishing Company and to West Group in the quarterly
table of noncitable cases issued by this Court.

¶2 Fire & Casualty of Connecticut appeals from an order of the
Workers' Compensation Court reversing the Montana Department of
Labor and Industry's decision that Grenz's 1984 elbow injury
claim for occupational disease benefits was barred by res
judicata. We affirm.

¶3 The sole issue on appeal is whether the Workers'
Compensation Court erred in concluding that Grenz's 1984 claim
for occupational disease benefits was not barred by res judicata.

             FACTUAL AND PROCEDURAL BACKGROUND

¶4 On August 22, 1984, Samuel J. Grenz injured his right elbow
while working on a steel railing for his employer, American Stud
Company. Within a week of his injury, Grenz filed a claim for
workers' compensation benefits ("1984 claim") and sought
treatment. The insurer, Fire & Casualty of Connecticut ("F&C"),
accepted liability for the right elbow injury and paid
compensation and medical benefits.

¶5 Grenz's 1984 injury "began a seemingly endless stream of
litigation that has resulted in multiple appeals to this Court
and innumerable proceedings in the Workers' Compensation Court."
Grenz v. Fire and Casualty of Connecticut (1993), 260 Mont. 60,
61, 857 P.2d 730, 731 (Grenz III ). We need not, however,
address each of Grenz's prior claims for the purposes of this
opinion.



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¶6 In 1991, this Court affirmed a decision of the Workers'
Compensation Court that determined Grenz's degenerative arthritis
and psychological problems were not causally related to his 1984
injury and denied his claim for permanent total disability
benefits. Grenz v. Fire and Casualty of Connecticut (1991), 250
Mont. 373, 820 P.2d 742 (Grenz I ). Following this decision,
Grenz filed a claim alleging that his degenerative arthritis was
caused by work-related microtrauma unrelated and subsequent to
the August 1984 injury. The Workers' Compensation Court dismissed
the claim on res judicata grounds. We reversed and remanded,
holding that the issue presented by Grenz's claim was not the
same issue decided in Grenz I. Grenz v. Fire and Casualty of
Connecticut (1992), 255 Mont. 121, 841 P.2d 494 (Grenz II ).
Upon remand, the Workers' Compensation Court determined that
Grenz's microtrauma claim was time barred. In 1993, this Court
affirmed the decision of the Workers' Compensation Court. Grenz
III, 260 Mont. at 66, 857 P.2d at 734.

¶7 Grenz had also filed an Occupational Disease claim in which
he sought benefits for his degenerative arthritis condition.
This claim was based on microtrauma occurring subsequent to the
elbow injury. The Workers' Compensation Court affirmed the
decision of the hearing examiner, which concluded that this claim
was time barred. Again, we affirmed the decision of the Workers'
Compensation Court. Grenz v. Fire and Casualty of Connecticut
(1996), 278 Mont. 268, 924 P.2d 264 (Grenz IV).

¶8 This leads us to the present case. On November 12, 1996,
Grenz filed another petition with the Montana Department of Labor
and Industry. In his petition, he alleged that he is entitled to
occupational disease benefits under his 1984 claim for
compensation. On December 27, 1996, the Department entered an
order dismissing Grenz's petition on the grounds that this Court
had previously decided the issue in Grenz IV. The Department
also restricted Grenz's pro se filings.

¶9 Grenz appealed the Department's decision to the Workers'
Compensation Court. The court determined that our decision in
Grenz IV did not bar Grenz's most recent petition and remanded
the case to the Department for further proceedings.

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¶10 F&C now appeals the decision of the Workers' Compensation
Court.

                 DISCUSSION
¶11 Did the Workers' Compensation Court err in concluding that
Grenz's 1984 claim for occupational disease benefits was not
barred by res judicata?

¶12 We review the Workers' Compensation Court's conclusions of
law to determine whether they are correct. CNA Ins. Cos. v. Dunn
(1995), 273 Mont. 295, 298, 902 P.2d 1014, 1016; Stordalen v.
Ricci's Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394.
We review the Workers' Compensation Court's findings of fact to
determine whether substantial evidence supports the findings.
Wunderlich v. Lumbermens Mut. Casualty Co. (1995), 270 Mont.
404, 408, 892 P.2d 563, 566 (citing Smith v. United Parcel
Service (1992), 254 Mont. 71, 75, 835 P.2d 717, 720).

¶13 F&C argues that the Workers' Compensation Court erred in
reversing the decision of the Department dismissing Grenz's claim
for occupational disease benefits. Specially, F&C argues that
the Workers' Compensation Court erred when it held that no court
has addressed whether Grenz's 1984 elbow injury claim also
encompassed a separate and independent claim for occupational
disease benefits. F&C contends that this Court's decisions in
Grenz I, Grenz III, and Grenz IV operate to bar Grenz's current
claim on the basis of res judicata.

¶14 Grenz counters that in 1984 the Department did not make a
distinction between an occupational disease and an industrial
injury in resolving the 1984 claim. He asserts that the
Department only focused on the elbow injury as an industrial
injury. Therefore, he argues the he may still pursue
occupational disease benefits under the 1984 claim.

¶15 The doctrine of res judicata bars the relitigation of a
claim once a final judgment has been entered. Holtman v. 4-G's
Plumbing and Heating, Inc. (1994), 264 Mont. 432, 872 P.2d 318.
Finality is accorded to the disposition of all issues that were

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raised or that could have been raised; a party, therefore, is
prohibited from relitigating a claim that he or she has already
had an opportunity to litigate. Loney v. Milodragovich, Dale &
Dye, P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 161. The
following four elements must be satisfied in order to apply the
doctrine of res judicata: (1) the parties or their privies must
be the same; (2) the subject matter of the action must be the
same; (3) the issues must be the same and relate to the same
subject matter; and (4) the capacities of the persons must be the
same in reference to the subject matter and to the issues.
Holtman, 264 Mont. at 436, 872 P.2d at 320.

¶16 Applying the elements to the claim before it, the Workers'
Compensation Court determined that the doctrine of res judicata
did not bar Grenz's 1996 petition for occupational disease
benefits relating to his 1984 claim. We agree.

¶17 Grenz's petition asserts that his 1984 claim constituted
both a claim for his elbow injury and a separate claim for
occupational disease benefits due to microtrauma suffered at work
prior to his elbow injury. In Grenz I, this Court determined
that Grenz's degenerative arthritis was not causally related to
his 1984 elbow injury. Grenz I, 250 Mont. at 379-80, 820 P.2d
at 746. That decision did not address whether Grenz's
degenerative arthritis was an occupational disease related to his
work at American Stud Company prior to the 1984 elbow injury.

¶18 Furthermore, our decisions in Grenz III and Grenz IV did not
relate to Grenz's 1984 claim. In Grenz III, Grenz was requesting
compensation under the Workers' Compensation Act for microtrauma
occurring after the 1984 elbow injury. The microtrauma claim was
filed in 1991 and was separate from the 1984 claim. We
determined that the 1991 claim was barred by the statute of
limitations because Grenz did not timely file. Grenz III, 260
Mont. at 66, 857 P.2d at 733-34. Also in 1993, Grenz was
pursuing occupational disease benefits based upon microtrauma
occurring subsequent to the 1984 elbow injury. In Grenz IV, 278
Mont. at 273, 924 P.2d at 267, we determined that this claim was
also time barred.



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¶19 No decision by this Court has considered whether Grenz is
entitled to occupational disease benefits for microtrauma
suffered at work prior to his injury under his 1984 claim for
compensation. Therefore, we determine that the doctrine of res
judicata does not bar Grenz from proceeding with his claim.

¶20 Also, whether the doctrine of estoppel applies to bar
Grenz's petition is not a matter currently before this Court. In
the Department proceeding, F&C did not argue that estoppel barred
Grenz's petition. Moreover, the hearing officer's December 27,
1996, order dismissing Grenz's claim did not address the issue.

¶21 We conclude that the Workers' Compensation Court did not err
in concluding that Grenz's 1996 petition relating to his 1984
claim for occupational disease benefits was not barred by res
judicata.

¶22 Affirmed.

                JUSTICE REGNIER
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and LEAPHART concur.




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