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No. 133762
| Waylon E. Gee, |
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Daryl C. Royal |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Worker's Comp Appellate Comm) |
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| Arthur B. Myr Industries, Inc., |
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William N. Evans |
| Defendant-Appellant. |
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| __________________________________________ |
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Plaintiff-Appellee's Brief in Opposition to Application for Leave to Appeal>>
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Background
Waylon Gee sustained a severe work-related injury in 1992 and was paid voluntary worker’s compensation benefits after that date. In a 2001 proceeding, a magistrate found that Gee was totally and permanently disabled. At the close of proofs, Gee requested attendant care benefits, based on assistance his family provided; the magistrate did not address this claim. On appeal to the Workers’ Compensation Appellate Commission, Gee claimed that the magistrate erred by failing to award attendant care services; Gee asked the WCAC to remand the case to the magistrate so that Gee could present additional evidence regarding the value of his family’s attendant care services, as this information had not been put in evidence at trial. The WCAC ruled that Gee was not entitled to an award of attendant care services, based on Gee’s failure to prove the reasonable value of the services performed. Gee appealed, but leave to appeal was denied by the Court of Appeals and the Supreme Court. Gee then filed a new application for hearing, again requesting attendant care services. Arthur B. Myr Industries, Inc., Gee’s former employer, moved to dismiss the claim as barred by res judicata, a legal doctrine which precludes parties from litigating claims that have already been finally decided in court. The magistrate denied this motion. Just before trial, the care providers filed applications for hearing seeking payment for attendant care services that they provided, but the case proceeded on Gee’s application. After a hearing, the magistrate found that Gee was entitled to 56 hours per week of services. Myr Industries appealed to the WCAC, claiming in part that res judicata barred the award. The WCAC ruled that the magistrate correctly concluded that res judicata was not applicable and rejected Myr Industries’ other claims. The Court of Appeals affirmed the WCAC’s res judicata ruling in an unpublished per curiam opinion. Myr Industries appeals.
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