BOARD No. 051392-89Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 27, 1995


Judges Smith, Kirby, and Maze-Rothstein.


Emmanuel N. Papanickolas, Esq., for the employee.

John Preston, Esq., for the insurer.


This case raises issues of the preclusive effect of an unappealed conference order, the arbitrariness of factual findings unsupported by the record, and the scope of judicial authority to order lesser benefits than those claimed. The employee appeals from a decision which denied his claim for § 34 benefits and terminated the § 35 benefits being paid pursuant to a prior conference order. He argues that his right to compensation for a wrist injury was established by that prior unappealed conference order. Additionally, the employee asserts that the general findings of the administrative judge are not supported by the evidence and that the administrative judge had no authority to terminate his § 35 partial incapacity benefits when his sole claim was for § 34 temporary total incapacity benefits. We conclude that the unappealed conference order did not establish the existence of a wrist injury. However, because the decision lacks clarity and contains legal error, we vacate and remand.

Procedural History

On October 3 1989, Gustavo Aguiar received a personal injury arising out of and in the course of his employment. Shortly thereafter, he filed a claim for weekly wage replacement and medical benefits. On the claim form, he listed by department codes the body parts which were allegedly injured. The listed codes included “310 Arm(s), UNS” and “320 Wrist(s).” The insurer did not initially accept his claim and therefore the department scheduled a conference pursuant to G.L.c. 152, § 10A. By conference order filed on April 27 1990, an administrative judge ordered total temporary compensation from the date of injury until April 4, 1990, and partial compensation continuing thereafter. The conference order did not identify what body parts were injured. Neither party appealed the conference order.

Shortly thereafter, on May 25 1990, Aguiar filed a claim for further compensation. The claim form listed by department code the nature of the injury as “210 Fracture” and the affected body part as “330 hand(s) Not Wrist or Fingers.” The insurer did not voluntarily accept the claim for additional compensation. Consequently, on January 29, 1991, the department held a conference on the new claim pursuant to G.L.c. 152, § 10A. At conference, Aguiar asserted entitlement to total temporary compensation from May 1, 1990 and continuing. The resulting conference order denied the claim for further compensation. Aguiar appealed from this conference order and the matter went to a full evidentiary hearing. At hearing, the judge denied and dismissed Aguiar’s claim for temporary total benefits and terminated his partial benefits. The judge found that Aguiar’s cervical and lumbosacral strains had resolved themselves, and rejected Aguiar’s claim of injury to his left wrist. (Dec. 8.) It is this hearing decision that is the subject of the pending appeal.


The employee raises three basic issues on appeal. First, the employee argues that the unappealed 1990 conference order precluded the insurer from disputing the left wrist injury. Next, the employee argues that the judge’s order denying temporary total compensation and discontinuing partial compensation is unsupported by the evidence. Finally, the employee argues that the judge was not justified in discontinuing partial incapacity benefits when the employee had only raised the issue of total incapacity benefits. We will address each issue in turn.

I. Issue Preclusion

Res judicata means “a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment.”Black’s Law Dictionary (6th ed.) (1990). Res judicata is a rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. Id; see also Restatement (Second) of Judgments § 33 (1982). Res judicata applies only when a final judgment is entered. Restatement (Second) of Judgments § 13. The judgment extinguishes the claim and substitutes for it the judgment with its rights of enforcement. Id. § 17.

A judgment may preclude a different result in a subsequent proceeding. When an issue is actually litigated and determined in an action, that determination is also generally conclusive in any subsequent action between the parties on the same claim. Id.

There are many exceptions to this general rule of bar. Se id. § 20. Courts have employed a pragmatic approach to strike the delicate balance between, on the one hand, the interests of the defendant and of the courts in bringing litigation to a close and, on the other, the interest of the plaintiff in the vindication of a just claim. Id. § 24 at 199.

The issue preclusion doctrine, although recognized as applicable to workers’ compensation cases, does not rigidly bar further litigation. Hunnewell’s Case, 220 Mass. 351, 353, 107 N.E. 934, 935 (1915). Workers’ compensation procedure is flexible and adapted to the direct accomplishment of the aim of the act, with as little formality or hampering restriction as is consistent with the preservation of the real rights of the parties and the doing of justice according to the terms of the act. Id., 220 Mass. at 354, 107 N.E. at 935. The workers’ compensation act specifically directs that procedures in the division of dispute resolution “shall be as simple and summary as reasonable.” G.L.c. 152, § 11B. Finality is extended only where the litigation of a particular issue has reached such a stage that there is no good reason for permitting it to be litigated again and where the failure to conclude the litigation will lead to needless duplication of effort and expense. Se Arthur D. Little v. East Cambridge Savings Bank, 35 Mass. App. Ct. 734, 739-740 (1993), citing Restatement (Second) of Judgments § 13, comment g (1982) (issue preclusion based on trustee process action).

Re-litigation is not precluded where a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise avoid inequitable administration of the laws. After an initial award of compensation, the parties may seek to modify a previous order as changes occur in the condition of the injured employee MacKinnon’s Case, 286 Mass. 37, 39 (1934). A claim for further compensation or a complaint for discontinuance is not precluded by a prior decision. Mozetski’s Case, 299 Mass. 370, 372, 13 N.E.2d 10, 11-12 (1938); Goulet v. APA Transportation Corporation,
8 Mass. Workers’ Comp. Rep. 338 (1994); Russell v. Red Star Express Lines, 8 Mass. Workers’ Comp. Rep. 404 (1994).

Section 16 further limits issue preclusion. It provides:

When in any case before the department it appears that compensation has been paid or when in any such case there appears of record a finding that the employee is entitled to compensation, no subsequent finding by a member or the reviewing board discontinuing compensation on the ground that the employee’s incapacity has ceased shall be considered final as a matter of fact or res judicata as a matter of law, and such employee or his dependents, in the event of his death, may have further hearings as to whether his incapacity or death is or was the result of the injury for which he received compensation-provided, however, that if the board shall determine that the petition for such rehearing is without merit or frivolous, the employee or his dependents shall not thereafter be entitled to file any subsequent petition thereof except for cause shown and in the discretion of the member to whom such subsequent petition may be referred; and, provided further, that, in the event of the death of the employee, such a petition for a rehearing shall be filed within three months from the time of his decease and within one year from the date of the finding terminating his compensation.

Compare Carmody’s Case, 333 Mass. 249, 251, 130 N.E.2d 567 (1955) (§ 16 permitted relitigation of decision that disabling skin condition later appearing was not causally related to compensable injury; new medical evidence) with Longerato’s Case, 352 Mass. 284, 287, 225 N.E.2d 356 (1967) (denial of initial claim precluded subsequent litigation).

The conclusive effect of workers’ compensation decisions is limited to those issues clearly addressed by the administrative judge. See G.L.c. 152, § 11B (decision must set out each issue in controversy). The rule of res judicata is narrowly applied so as to conclude only those issues essential to the order or explicitly decided.

The basic question that res judicata presents is what the decree adjudicated. Sargent’s Case, 347 Mass. 250, 252, 197 N.E.2d 592, 593 (1964). The decision is binding upon the parties as to the issues encompassed therein. Vetrano v. P.A. Milan Co.,
2 Mass. Workers’ Comp. Rep. 232, 234-235 (1988). For example, an initial award of benefits precludes litigation on the issue of employment relationship. Hurley’s Case, 235 Mass. 387, 389
(1920). See also St. Marie v. Roberts Bros. Lumber,
6 Mass. Workers’ Comp. Rep. 155 (1992), aff’d, 36 Mass. App. Ct. 1116
(1994) (issue of employment relationship foreclosed by payment beyond the without prejudice period); MacKinnon’s Case, 286 Mass. 37, 38 (1934) (a compensation agreement is a final determination of the facts material to the existence of liability, of the fact of employment, of injury arising out of and in the course of employment, of notice, etc.). As discussed above, other matters not explicitly determined, even though they may have been initially raised in the claim or complaint, are not concluded and may properly be the subject of further litigation. See, e.g Colon v. Andover Courtyard, 9 Workers’ Comp. Rep. 9 (1995) (the issue of future medical treatment is not precluded by a denial of past medical treatment).

To preclude an issue, one must know what was adjudicated, in order to know what a party is prevented from raising later Vetrano v. P.A. Milan, 2 Mass. Workers’ Comp. Rep. at 234, citin Sargent’s Case, 347 Mass. at 252. Therefore, the manner in which a party is bound must depend upon the explicit directive contained within the document on which the preclusion is based.

Further litigation is precluded only where the issue was the basis of the relief, denial of relief or other ultimate right established by the order. See Olsen v. Olsen, 294 Mass. 507, 509
(1936) (no preclusion attached to finding of cruel and abusive treatment where case dismissed on other grounds). An order is

conclusive by way of estoppel only as to those facts which were necessarily involved in [it] without the existence and proof or admission of which such [an order] . . . could not have been rendered. . . . The estoppel is not confined to the [order], but extends to all facts involved in it as necessary steps or the groundwork upon which it must have been founded. It is allowable to reason back from [an order] to the basis on which it stands, “upon the obvious principle that, where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.” But such an inference must be inevitable, or it cannot be drawn.

Burlen v. Shannon, 99 Mass. 198, 202-203 (1868) (paraphrased to substitute “order” for “judgment”); see also Restatement (Second) of Judgments § 27 (1982).

Here, although the employee’s initial claim form listed the wrist among several other [sic] the injured body parts, the ensuing conference order awarded benefits without defining the nature of the injuries. The definition of the injury was not essential to the conference award. All the judge needed to decide to make the order which he issued was that some injury occurred which impaired the employee’s ability to work. See G.L.c. 152, §§ 34 and 35.

Practical policy reasons influence our decision. Precluding the litigation over the nature of the injury merely because a particular body part was listed on the initial claim form would defeat the conference’s goal of simple and speedy delivery of benefits to the deserving injured worker. Such a rule would require formal litigation of all claims where there was agreement on the fact of an injury resulting in incapacity, but incomplete agreement or dispute on the exact nature of the injury. It would result in the very evil which the res judicata rule is designed to prevent: unnecessary litigation.

Restatement (Second) of Judgments § 13 (1982) lists the prerequisites for issue preclusion: (1) the opportunity to be fully heard, (2) a reasoned opinion supporting the decision and (3) the ability to appeal the decision. Section 10A conference orders meet some of these prerequisites for issue preclusion.

At conference the parties have an opportunity to be heard. However, that opportunity is more circumscribed than at formal hearing where the parties have the right to confront and cross-examine witnesses. Conferences are summary processes where a judge issues an order based in large part upon hearsay, without the benefit of cross-examination. See G.L.c. 152, § 10A[1] ; Shaw v. Hoffman’s, 5 Mass. Workers’ Comp. Rep. 184, 186 (1991). Because of differences in procedure between the informal conference pursuant to G.L.c. 152, § 10A and the formal hearing pursuant to G.L.c. 152, §§ 11-11B, a flexible preclusion rule is justified.

The conference order is subject to review. G.L.c. 152, § 10A(3) provides that any party aggrieved by a conference order may file an appeal for a hearing pursuant to § 11. By statutory directive, an unappealed conference order binds the parties to all matters covered by it. Section 10A provides: “Failure to file a timely appeal . . . shall be deemed to be acceptance of the administrative judge’s order and findings. . . .” However, once an injured worker receives an order of payment there is little incentive to appeal merely to obtain a definition of the injured body parts. See Restatement (Second) of Judgments § 28(5)(c) (Re-litigation is not precluded where there is a clear and convincing need for a new determination of the issue because the party sought to be precluded, as a result of special circumstances, did not have an adequate incentive to obtain a full and fair adjudication in the initial action).

Most significantly, the crucial factor of a reasoned opinion is usually absent in conference orders. Commonly conference orders use boilerplate language, merely stating the average weekly wage, the earning capacity, if any, and the compensation award. Generally the nature of the work injuries is not defined.

For all these reasons, we hold that the unappealed conference order in this case did not, as a matter of law, preclude further litigation over the nature of the work injury.

II. Record Support of Factual Findings

As the second issue on appeal, the employee contends that the decision of the administrative judge is not supported by the evidence. The judge found that “the employee never mentioned his left wrist to his treating physician” and that, therefore, the employee’s “testimony [was] not credible, but quite brazen.” (Dec. 7.) However, the record contains evidence that the employee did complain to his health care providers about left wrist problems. The employee’s physician, Dr. Greenler testified that he had personally reviewed hospital records “in which there were complaints by [the employee] regarding his left wrist,” and that the complaints were made “on or about the same date of the accident.” (Dep. 8.) This evidence is consistent with the employee’s testimony that he went to Lynn Hospital on the day of his accident because of left hand pain. (Tr. ___10-11.) The judge did not explicitly evaluate this crucial evidence in the record. This evidence could support a conclusion that was contrary to that reached by the judge. We are unable to tell from the decision whether the judge overlooked, misperceived or discounted this evidence. We therefore vacate the above-recited factual finding and remand for further findings on this issue.

The judge indicated in his general findings that he based his decision in part upon “other documented evidence contained within the board files.” (Dec. 6.) A judge must base a decision on the testimony and evidence presented at hearing and may not consider material that is not part of the actual hearing record Rossi v. Mass. Water Resources Authority,
7 Mass. Workers’ Comp. Rep. 101, 102 (1993). Because the judge explicitly stated within the body of his decision that he considered materials from outside the official record, the decision cannot stand.

On remand the judge should base the decision upon the evidence properly made a part of the record. If the judge wishes to consider materials in the board file, he should do so by explicitly taking judicial notice of them, allowing the opportunity for objection and rebuttal. See P.J. Liacos, Massachusetts Evidence § 2.7 (6th ed. 1994) (proposed Mass. R. Evid. Rule 201(e) requires opportunity to be heard) and § 2.8.1 at 43 (files and records of the court as to the case in issue and proceedings ancillary thereto, will be judicially noticed). See also c. 30A, § 11(5) (parties shall be notified of the material so noticed and afforded the opportunity to contest the facts so noticed).

III. Scope of Authority

As the third issue on appeal, the employee contends that the judge lacked authority to terminate his compensation because his claim was for an increase in compensation. We disagree. By appealing the conference order, the employee placed in dispute the nature and extent of his incapacity during the period for which he was seeking benefits. It was the employee’s burden to show he was entitled to any continuing compensation.


In summary, because the administrative judge may have misperceived the evidence or rendered a decision lacking in evidentiary support, we vacate the decision and remand for a new decision consistent with this opinion. In light of the passage of time during the pendency of the appeal, if either party alleges a change in medical condition or vocational skills since the date the record closed, justice requires that additional hearings be held prior to the entry of the remand decision.

So ordered.

Judge Kirby concurs.

[1] G.L.c. 152, § 10A provides: . . . “The administrative judge may require and receive reports of injury, signed statements of the employee and any witnesses, medical, hospital, and rehabilitation records, and other written and oral matter. At the conference, the parties shall identify the issues in dispute and they shall produce a summary of any anticipated testimony.”

MAZE-ROTHSTEIN J., concurring.

While I agree with the outcome and policy concerns the majority voices pertaining to standard imprecise conference orders, I demur to any implication that res judicata exceptions nearly swallow the rule in the workers’ compensation forum.

Generically “res judicata” connotes the defenses that may be advanced to prevent a party from relitigating a claim or issue which has been — or could have been — already litigated. J.R. Nolan L.J. Sartorio, Tort Law § 423, at 167 (2d ed. 1989 Supp. 1995).[2] It is the court’s way of saying “enough.” Thereby fairness is promoted, parties are afforded well-earned repose and needlessly redundant litigation is minimized. Principles of res judicata apply to administrative agencies, subject to the same qualifications and exceptions as judgments rendered in courts, so long as the determinations obtained entail the essential elements of an adjudication.[3]
Restatement (Second) of Judgments § 83(1), (2). This department provides such a forum. The rules of res judicata apply when a final judgment is rendered (i.e., from the date of its issuance). Id. §§ 13 and 14. Final judgments include any prior adjudication of an issue determined sufficiently firm to be accorded conclusive effect in the subsequent action. Id. 13. The central rule of res judicata is: issues that were or could have been raised and actually litigated and are essential to the judgment, may not be again proposed in litigation between the same parties. J.R. Nolan L.J. Satorio, Tort Law §§ 423, 427 at 167, 171 (2d ed. 1989 Supp. 1995).

Thus, res judicata rules have a necessary and desirable effect in the adjudications of this department, both as to unappealed conference orders and hearing decisions. See G.L.c. 152, § 10A (failure to make a timely appeal deemed acceptance of the administrative judge’s order). It is not that in workers’ compensation cases, res judicata must be narrowly applied, but that res judicata, in any adjudicatory forum is a precision instrument. It is a scalpel among adjudicatory tools and must be carefully and accurately utilized.

In the anatomy of a workers’ compensation cases there is a major artery which has been defined in the case law and that administrative judges should hesitate to completely sever based on res judicata grounds. It derives from the mutable health of the injured worker who is subject to a system of periodic payments. See Mozetski’s Case, 299 Mass. 370, 372 (1938) (changes may occur in employee’s condition). Thus, a finding of causal relationship or even an order discontinuing benefits does not preclude subsequent hearing determinations which, when looked at again, reveal the same condition at that time connects with the injury. G.L.c. 152, § 16; Mulkern’s Case, 274 Mass. 69
(1931); Hummer’s Case, 317 Mass. 617 (1945); Carmody’s Case, 333 Mass. 249 (1955). Judges are obligated, in subsequent proceedings, to ascertain from the evidence whether the employee’s current physical condition connects with and/or is attributable to the aftermath of the identical injury. 2A A. Larson, Workmen’s Compensation § 496 (1976 Supp. 1981).

By contrast, res judicata can have its full preclusive effect on issues such as: original liability — the occurrence or non-occurrence of an industrial accident; insurance coverage; or the set sum for payments ordered. Hurley’s Case, 235 Mass. 387 (1920) (occurrence); Longerato’s Case, 352 Mass. 284
(1967) (non-occurrence); Rocha’s Case, 300 Mass. 121 (1938) (insurance coverage); Stone’s Case, 318 Mass. 658 (1945) (amount and method of payment).

All of the above applies to unappealed conference orders pursuant to § 10A. While many if not most conference orders acceptably and even preferably lack the necessary specificity to accurately apply res judicata, should specific designations be made at the parties’ urging or on the judge’s own initiative the opposite may be true. Therefore, had the judge in the case at bar indicated for which body parts benefits were awarded and had there then been no conference order appeal, res judicata could have been found.

[2] The principal concepts within the “res judicata” rubric are:

1. “merger” which extinguishes a claim in a judgment for plaintiffs;
2. “bar” which does the same in a judgment for defendants; and
3. “issue preclusion” which determines an issue in another action between parties on the same claim (direct estoppel) or on a different claim (collateral estoppel).

Restatement (Second) of Judgements 131.

[3] The adjudicatory elements are:

1. notice;

2. the right to present and rebut evidence and to advance legal arguments;

3. a formulation of issues of law and fact;

4. a point of finality in the proceedings marked by issuance of a final decision; and

5. other such procedural safeguards.

Restatement (Second) of Judgments § 83(2)(a), (b), (c), (d), (e).