Full Opinion (html_with_citations)

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 Argued and submitted November 9, reversed and remanded December 7, 2022


               In the Matter of the Compensation of
               Socorro Martinez-Munoz, Claimant.
                  Socorro MARTINEZ-MUNOZ,
                             Petitioner,
                                  v.
                  KENDAL MERCHANDISING-
                 FLOREXPO-KENDAL FLORAL,
                            Respondent.
                   Workers’ Compensation Board
                        2000060; A176371
523 P3d 161

     Claimant seeks judicial review of an order of the Workers’ Compensation
Board affirming an order of an administrative law judge denying her occupa-
tional disease claim for thumb tendonitis, based on claim preclusion as a result of
the board having previously rejected a claim for the same condition in the form of
a new/omitted medical condition. Held: The Court of Appeals held that the board
erred in determining that claimant’s occupational disease claim was barred by
claim preclusion in light of the board having previously reserved claimant’s right
to initiate an occupational disease claim at a later time.
    Reversed and remanded.



   Juliene M. Quinn argued the cause and filed the brief for
petitioner.
   Jonathan A. Rose argued the cause for respondent. Also
on the brief was MacColl Busch Sato, P.C.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
    EGAN, J.
    Reversed and remanded.
12               Martinez-Munoz v. Kendal Merchandising

        EGAN, J.
        Claimant seeks judicial review of an order of the
Workers’ Compensation Board affirming an order of an
administrative law judge (ALJ) denying her occupational
disease claim for thumb tendonitis, based on claim preclu-
sion as a result of the board having previously rejected a
claim for the same condition in the guise of a new/omitted
medical condition. We conclude that the board erred and
therefore reverse and remand the board’s order.
         Claimant experienced a compensable injury at work
on October 14, 2016. Claimant’s attending physician diag-
nosed a “right wrist sprain,” but also opined that claimant’s
findings were “consistent with the history of a work-related
etiology of her repetitive use strain,” and “consistent with
an overuse syndrome resulting in pain and swelling of the
base of the thumb/wrist.” Employer accepted the claim as a
nondisabling right-wrist strain.
         After acceptance, claimant’s attending physician
and a second physician both opined that claimant suffered
from tendonitis in her thumb that they identified as a repet-
itive use strain, not related specifically to the October 14
injury but related to claimant’s repetitive use of her thumb
at work while bunching flowers off of a conveyor belt.
         Claimant requested that the insurer modify the
notice of acceptance of the October 14 injury to include ten-
donitis of the right flexor pollicis longus tendon, as a new/
omitted medical condition. Employer denied the new/omitted
medical condition claim, asserting that the thumb condition
was not related to the October 14 work injury.
         At the hearing on the new/omitted medical condi-
tion claim, claimant’s counsel did not seek to assert a claim
for the thumb condition on an occupational disease the-
ory and mentioned that theory only in closing argument.
Employer took the position at the hearing that the theory
of compensability presented by claimant was a new/omitted
medical condition claim related to the injury claim, and that
an occupational disease claim was not presented or ripe for
hearing.
Cite as
323 Or App 11
 (2022)                               13

         In his order rejecting claimant’s new/omitted med-
ical condition claim and upholding employer’s denial, the
ALJ found that the evidence did not support claimant’s
contention that her thumb condition was related to the
accepted injury. In rejecting claimant’s contention that the
medical evidence supported the finding that the thumb con-
dition was compensable as an occupational disease, the ALJ
explained that the new/omitted medical condition claim had
referenced only the October 14 compensable injury and had
not asserted an occupational disease claim. The ALJ agreed
with employer’s contention that an occupational disease was
not “ripe for hearing.” The ALJ therefore upheld employer’s
denial of the claim.
          The board agreed with the ALJ’s analysis and
affirmed the ALJ’s order. Although claimant continued to
assert that the medical evidence supported the compensa-
bility of an occupational disease, the board determined that
it would not consider claimant’s contention that her thumb
condition was compensable as an occupational disease,
claimant having failed until closing argument at the hear-
ing to assert that the claim was compensable as an occupa-
tional disease.
         In an order on reconsideration, the board adhered
to its original order, but stated in a footnote, “because we
have determined that an occupational disease claim was not
at issue at the hearing, our decision does not preclude claim-
ant from initiating an occupational disease claim should she
choose to do so.”
         Claimant then filed the occupational disease claim
at issue here, asserting that the repetitive activities of her
work had given rise to a compensable condition. Employer
denied the claim, asserting that it was barred by claim
preclusion or, in the alternative, that the condition was not
related to claimant’s employment.
        The ALJ upheld the denial, reasoning that, despite
the board’s footnote—which the ALJ described as “dicta”—
the claim was barred by claim preclusion, because, based on
the same operative facts, claimant could have asserted an
occupational disease claim at the time of the new/omitted
14               Martinez-Munoz v. Kendal Merchandising

medical condition claim. The board affirmed and adopted
the ALJ’s order.
         On judicial review, claimant does not dispute that
claim preclusion is applicable in the workers’ compensation
context, see Drews v. EBI Companies,
310 Or 134, 142
,
795 P2d 531
 (1990) (so holding), but asserts for several reasons
that the board erred in rejecting the occupational disease
claim based on claim preclusion. Claimant’s primary argu-
ment is, in essence, that, because a new/omitted medical con-
dition claim may be brought at any time, ORS 656.262(7)(a);
Evangelical Lutheran Good Samaritan Soc. v. Bonham,
176 Or App 490
,
32 P3d 899
 (2001), rev den,
334 Or 75
 (2002)
(ORS 656.262(7)(a) bars application of the rules of claim
preclusion to a new medical condition claim.) and therefore
is not subject to claim preclusion, an occupational disease
claim based on the same conditions previously litigated
in a new/omitted medical condition claim can be litigated
separately from the new/omitted medical condition claim
for the same condition. We do not address that contention,
because we agree with claimant’s further argument that
claim preclusion is not applicable as a result of the board
having reserved claimant’s right to file an occupational dis-
ease claim.
         The Supreme Court held in Drews,
310 Or at 141
,
that the applicability of claim preclusion is subject to an
exception: When “the decision maker expressly reserves for
a party the right to maintain a second action or proceed-
ing at the time the first determination is made, there is no
preclusive effect.” (citing Restatement (Second) of Judgments
§ 20(1)(b) (1982) (“A determination by the court that its judg-
ment is ‘without prejudice’ (or words to that effect) to a sec-
ond action on the omitted part of the claim, expressed in
the judgment itself, or in the findings of fact, conclusions of
law, opinion, or similar record, unless reversed or set aside,
should ordinarily be given effect in the second action.”). The
board’s footnote explicitly reserved claimant’s right to main-
tain an occupational disease claim for her thumb condition,
giving rise to an exception to claim preclusion.
        The ALJ and employer both dismissed the board’s
footnote as dicta. Whether or not it is dicta, it constituted
Cite as
323 Or App 11
 (2022)                                15

a reservation. An adjudicative body can determine that its
own decision is not preclusive in future proceedings. Drews,
310 Or at 141
. The board explicitly had before it the question
whether claimant had presented a claim for an occupational
disease; although the board concluded that it did not have
an occupational disease claim before it, the board’s footnote
explicitly reserved claimant’s right to bring such a claim.
That is exactly the type of reservation that the court held in
Drews gives rise to an exception to claim preclusion.
         Employer contends that claimant’s occupational
disease claim is untimely. Employer will have an opportu-
nity to raise that issue before the board in the first instance
on remand.
        Reversed and remanded.