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Case # G0324986
Date of Accident: 06/25/2010
District Office: NYC
Employer: NYCHA
Carrier: NYC Housing Authority
Carrier ID No.: W843254
Carrier Case No.: NHA12174
Date of Filing of Decision: 12/11/2013
Claimant's Attorney: Harris Law Group, LLP
Panel: Robert E. Beloten

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on November 19, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision, duly filed and served on April 8, 2013.

ISSUE

The issue presented for Mandatory Full Board Review is whether the establishment of this claim for causally related depression was appropriate without first considering whether this claim is barred by collateral estoppel.

The Workers' Compensation Law Judge (WCLJ) found that although the claimant was subjected to work-related stress that was greater than that which other similarly situated workers experienced in his normal work environment, the medical evidence produced was not sufficient to establish causal relationship between the work-related stress experienced by the claimant and his depression or ulcer. The WCLJ disallowed the claimant's claim.

The Board Panel majority found that the only issue presented for Board Panel review was whether there is sufficient medical evidence in the record to support the claimant's contention that his claim for depression should have been established. The Board Panel majority based its determination on the fact that the self-insured employer (SIE) did not request review of the WCLJ's finding that the claimant experienced stress greater than that normally experienced by a similarly situated worker, nor did the SIE submit a rebuttal to the claimant's contention that his claim for depression should have been established. The Board Panel majority further found that the medical evidence in the record supports a finding that the claimant sustained a causally related adjustment disorder mixed with anxiety and depressed mood as a result of the stress that he experienced in the course of his employment, and established the claim.

The dissenting Board Panel member concurred in the Board Panel majority's reversal of the WCLJ's determination that the claimant failed to produce sufficient evidence of a causally related depression. However, the dissenting Board Panel member disagreed with the establishment of the claim because the WCLJ did not address that SIE's argument that the claim is barred by collateral estoppel, and the Board Panel majority did not decide the issue. The dissenting Board Panel member would remand the case back to the trial calendar for the WCLJ to render a determination on the SIE's collateral estoppel defense.

On May 8, 2013, the SIE filed an application for Mandatory Full Board Review, arguing that the Board Panel majority erroneously established the claimant's claim for causally related depression without considering whether the claim is barred on the basis of collateral estoppel.

No rebuttal was filed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This is a controverted claim for causally related depression.

In a C-3 (Employee Claim), the claimant indicated that he was a superintendent for the employer, and that on June 25, 2010, he began to experience physical pain in his abdomen during a stressful interaction with the deputy director. The claimant alleged that he developed depression and abdominal pain as a result of the stress that he experienced in the course of his employment.

During a hearing on October 18, 2011, the claimant testified that he was working for the employer as a superintendent in June 2010. The claimant provided extensive testimony regarding his interactions with the deputy director over the course of several years leading up to and including June 25, 2010. According to the claimant, the stress that he experienced as a result of these encounters resulted in the cessation of his working on June 25, 2010. Specifically, the claimant testified that during the approximately twelve to eighteen months prior to June 25, 2010, he was engaging in "whistleblowing" communications, and that the deputy director was retaliating against him by taking adverse actions against him, such as issuing counseling memos to the claimant and bringing the claimant up on charges at a disciplinary hearing. According to the claimant, approximately nine months prior to June 25, 2010, he began seeing a therapist due to the stress that he was experiencing at work. The claimant testified that he filed a federal lawsuit against the deputy director in January 2010.

Subsequent to the hearing on October 18, 2011, documents pertaining to a disciplinary hearing held on February 17, 2010, and the claimant's federal law suit were submitted into the record.

A "Record of Local Hearing Conducted By Neutral" dated February 17, 2010, indicated that the employer charged the claimant with four disciplinary charges. The claimant was found guilty of two of the four charges.

In a Civil Judgment filed on December 16, 2011, with regard to the claimant's federal lawsuit, a jury found that the claimant had proven, by a preponderance of the evidence, that he engaged in protected speech by complaining to the Department of Equal Opportunity and the Office of Inspector General regarding violations of the SIE's policy, violations of law and/or understaffing; that the deputy director took adverse actions against him after such communications were made; and that the claimant's protected speech was a motivating factor in the deputy director's decision to take the adverse actions. However, the jury found that the claimant failed to prove by a preponderance of the evidence that he sustained compensatory damages as a direct result or as a reasonably probable consequence of the deputy director's conduct in violation of his First Amendment Rights, and awarded the claimant $1.00 in nominal damages.

During a hearing on January 10, 2012, the deputy director for the employer acknowledged that she was aware that the claimant had filed an action against her in the United States District Court, Southern District of New York. The deputy director provided extensive testimony regarding her professional interactions with the claimant.

At the conclusion of the hearing on January 10, 2012, summations were given. During summations, the representative for the SIE raised the issue of collateral estoppel in her closing argument (Hearing Minutes 1/10/12, pgs 67-68). Specifically, the SIE's representative stated that in order to claim compensation, the claimant has to have suffered an injury, and that a verdict was rendered in the claimant's federal lawsuit which found that the claimant failed to prove by a preponderance of the evidence that he sustained compensable damages as a result of the deputy director's conduct.

In a decision filed on January 13, 2012, the WCLJ found that although the claimant was subjected to work-related stress that was greater than that which other similarly situated workers experienced in his normal work environment, the medical evidence produced was not sufficient to establish causal relationship between the work-related stress experienced by the claimant and his depression or ulcer. The WCLJ disallowed the claimant's claim.

The claimant requested administrative review of the WCLJ's decision, arguing that the medical evidence in the record supported the establishment of the claim.

The SIE did not file a rebuttal.

LEGAL ANALYSIS

"'The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same' (Ryan v New York Tel. Co., supra, at 500 [citations omitted]). The only elements that need be established are, first, that the identical issue was necessarily decided in the prior action and is decisive in the present one and, second, that the party to be precluded had a full and fair opportunity to contest the prior determination (see, D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Ryan v New York Tel. Co., supra, at 501)" (Lee v Jones, 230 AD2d 435 [1997], lv denied 91 NY2d 802 [1997])." While, the second element is not at issue here, the SIE has the burden of demonstrating the identity of issue (Balcerak v County of Nassau, 94 NY2d 253 [1999]).

In the present case, the claimant brought an action in federal court alleging that the SIE, through its deputy director, took certain personnel actions in retaliation for his constitutionally protected speech that caused him compensable injury. The personnel actions that allegedly caused the stress giving rise to this claim appear to be the same as those that were asserted as the basis for the federal claim. The claimant prevailed in the federal action to the extent that the jury agreed that certain personnel actions taken by the deputy director were unlawful. However, the jury found that the claimant failed to prove by a preponderance of the evidence that he sustained compensatory damages as a direct result or as a reasonably probable consequence of the deputy director's conduct in violation of his First Amendment Rights. The jury awarded the claimant $1.00 in nominal damages. A plaintiff is only entitled to recover nominal damages if he is unable to prove that the unconstitutional actions caused compensable injury (Carey v Piphus, 435 US 247 [1978]).

During the hearing on January 10, 2012, the SIE's representative raised the issue of collateral estoppel in her closing argument before the WCLJ (Hearing Minutes, 1/10/12, pp. 67-68). The SIE's basis for the defense was clearly articulated, and the issue was preserved. However, the Board Panel majority declined to consider the SIE's defense because the SIE did not submit a rebuttal to the claimant's application for review. However, a rebuttal is not necessary to preserve the issue. A party who prevails on one ground need not appeal the WCLJ's failure to address an alternative ground. The prevailing party has the right to have all grounds raised before the WCLJ considered on appeal, regardless of whether the party points out those grounds to the Board Panel.

Therefore, the Full Board the issue of collateral estoppel raised by the SIE should be determined before this claim is established.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed on January 13, 2012, is RESCINDED and the matter is returned to the trial calendar to address the issue of whether the claimant is collaterally estopped from claiming a stress-related disability in his claim before the Board by the federal court's determination that the claimant did not suffer any "compensatory damages" from personnel actions taken by the SIE.