Martinez-Munoz v. Kendal Merchandising

Claim preclusion is subject to an exception when “the decision maker expressly reserves for a party the right to maintain a second action or proceeding at the time the first determination is made, there is no preclusive effect.” Drews v. EBI Cos., 310 Or 134, 141 (1990) (citing Restatement (Second) of Judgments § 20(1)(b) (1982)).

Claimant sought review of an order from the Workers' Compensation Board (the Board) that denied her occupational disease claim for thumb tendonitis on the grounds of claim preclusion. On judicial review, Claimant argued that claim preclusion is not applicable because the Board reserved Claimant’s right to file an occupational disease claim in the footnotes in an order on reconsideration. The administrative law judge denied this reasoning because the Board’s footnote was “dicta.” Claim preclusion is subject to an exception when “the decision maker expressly reserves for a party the right to maintain a second action or proceeding at the time the first determination is made, there is no preclusive effect.” Drews v. EBI Cos., 310 Or 134, 141 (1990) (citing Restatement (Second) of Judgments § 20(1)(b) (1982)). The Court held that the exception to claim preclusion had been met because whether or not the footnote was dicta, the Board's order on reconsideration expressly reserved Claimant's right to bring her occupational disease claim. Reversed and remanded.