CLAIM NO. D409144
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 20, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by JOHN BISCOE BINGHAM, Attorney at Law, North Little Rock, Arkansas.
Respondents represented by CHESTER C. LOWE, JR., Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER[2] Respondents appeal an opinion of the Administrative Law Judge finding that a proposed total knee replacement is reasonably necessary and causally related to the compensable injury. [3] This claim was previously before the Commission on the issue of whether claimant’s left knee difficulties were causally related to an admittedly compensable injury. The Administrative Law Judge found that the prior determinations that a causal connection existed are now res judicata and cannot be revisited. We agree. [4] Claimant was a working superintendent for the employer, a construction company. On July 16, 1984, claimant sustained multiple, severe injuries when he fell approximately 40 feet from a scaffold. Dr. John L. Wilson reported that claimant sustained “a severe fracture of the left humerus, a fracture of the right sacrum and hemipelvis [on the left], as well as a hemothrorax and contusion to his lung and rib fractures on the left.” Claimant was in traction for 47 days during his hospitalization from July 16 through September 4, 1984. Dr. Wilson testified that thereafter, claimant was “off weight bearing” and on crutches for several months. Dr. Wilson released claimant to return to work as of March 18, 1985. [5] In a hearing held on August 30, 1985 concerning an unrelated issue, claimant testified that after a hard day of work, his hip and knees would bother him. H. W. Roper, the owner, stated that claimant “limps pretty badly” at work. Roper added that due to the multiple injuries sustained by claimant, claimant could no longer adequately perform general carpentry and was limited to supervisory or very light duties. [6] Claimant did not mention any knee problems to Dr. Wilson until his visit on October 30, 1985. The condition of claimant’s knees apparently preexisted the compensable injury. Surgery was a distinct possibility. When asked if he had ever had prior problems with his left knee, claimant responded in the following manner: “No, not anything that I’ve ever missed any work because of. If I ever used either leg excessively I would have muscle pains. . . .” [7] Based on claimant’s history of no prior difficulties with his left knee, Dr. Wilson opined that the compensable injury aggravated claimant’s preexisting knee condition. Dr. Wilson provided the following testimony concerning claimant’s history:
[8] Based on the above evidence, the Administrative Law Judge and the Full Commission found that claimant had proven by a preponderance of the evidence that the compensable injury aggravated his preexisting knee condition. In an opinion delivered November 18, 1992, the Arkansas Court of Appeals affirmed the Commission while noting that claimant testified that he had no difficulties with his knee prior to the compensable injury and that based upon this history and Dr. Wilson’s opinion, there was substantial evidence to support the Commission’s finding that claimant sustained an aggravation of a preexisting condition. [9] Apparently in April 1996, respondent received a copy of an office note prepared by Dr. Lipke, an associate of Dr. Wilson, indicating that claimant was seen for problems with his knees on November 28, 1993, prior to the compensable injury. Respondent now seeks to relitigate the issue of whether claimant’s knee difficulties are causally related to the compensable injury based on this evidence. The Administrative Law Judge found that such a determination is barred by the doctrine of res judicata. [10] In Thurman v. Clarke Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994), the Arkansas Court of Appeals stated the following:I think he had some arthritic changes in his knee, and actually, as far as that goes, both knees, that preexisted the injury. However, he did not have problems with his knee, appreciable difficulty with his knee until after his injury, and then after he got back to his normal activities at work. And again, he related that following his injuries and following the time that he got off his crutches, that he began to have some difficulty with his knee, but he didn’t really relate that until later on.
[11] The prior litigation in this case was fully contested in good faith, involved the same claim and parties and resulted in a final judgment on the merits. See, Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). Therefore, we find that any determination of whether claimant’s knee difficulties were aggravated by, and causally related to, the compensable injury is barred by the doctrine of res judicata. [12] Even if we were to find that the doctrine of resjudicata is not applicable, we would still find that claimant has proven by a preponderance of the evidence that his left knee difficulties are causally related to the compensable injury. [13] In a deposition dated April 26, 1996, claimant still testified that he could not recall any treatment or problems with his knee prior to the compensable injury. More importantly, however, Dr. Wilson’s opinion did not change after becoming aware of a prior visit to Dr. Lipke.The doctrine of res judicata, which is applicable to decisions of the Workers’ Compensation Commission, forbids the reopening of matters once judicially determined by competent authority. Lunsford v. Rich Mountain Electric Coop., 38 Ark. App. 188, 832 S.W.2d 291 (1992). Moreover, matters decided on a prior appeal to this court are the law of the case and govern our actions on a subsequent appeal to the extent that we are bound by them even if we were inclined at the latter time to say that we had been wrong initially. Id.
[14] We find that claimant’s credible testimony and Dr. Wilson’s opinion constitute a preponderance of the evidence to support a finding that claimant sustained an aggravation of his preexisting condition. [15] The final issue is whether a total knee replacement is reasonably necessary, and causally related to, the compensable injury. We find that claimant has met his burden of proof on this issue as well. [16] In a report dated March 29, 1993, Dr. Wilson stated the following:A. As I related, I feel that he had an aggravation of a preexisting arthritic condition of his knee.
Q. I understand that you’re using those words, Doctor. But I would like to know what it was, what the aggravation was, what it caused, what objective finding, and to what extent that aggravation was, in your opinion, as a result of the accident of 1984?
A. Based on this gentleman’s not seeking medical care with Doctor Lipke after his November 28, 1983 visit, and not having difficulty until after his accident and starting to utilize his knee more, it is my feeling that, within a reasonable degree of medical certainty, that the injury that he had in 1984 aggravated the arthritic process that he had.
Q. Even though the findings were exactly the same as reflected in the report of 1983 and the report of November 1, 1985?
A. Arthritic-like type findings are going to be about the same. They are not going to be a lot different, sir. I base this on his lack of problems after his being seen in November 28th of `83.
[17] Due to claimant’s reluctance to have surgery on his knee and respondent’s controversion of his claim, surgery was never performed. Dr. Wilson testified that it is too late to perform an osteotomy and that claimant now needs a total knee replacement, as was anticipated back in 1993. Based on the above evidence, we find that claimant has proven by a preponderance of the evidence that a total knee replacement is reasonably necessary, and causally related to, the compensable injury. [18] Accordingly, we find that any determination as to whether claimant’s knee difficulties are causally related to the compensable injury is barred by the doctrine of res judicata. Further, even if the doctrine of res judicata is not applicable, we find that claimant has met his burden of proof. Additionally, we find that claimant has proven by a preponderance of the evidence that a total knee replacement is reasonably necessary, and causally related to, the compensable injury. Respondent is directed to comply with the award set forth in the opinion of the Administrative Law Judge. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the opinion of the Administrative Law Judge. For prevailing on this appeal before the Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00. [19] IT IS SO ORDERED.I have suggested that Mr. Busbea have an osteotomy of the proximal tibia to realign the weight bearing surface in the hope that this will give him 4 to 5 years before he has to have a total knee replacement. I think he is wired in to have a total knee replacement sometime in the future, however, I do not recommend the procedure at this time, due to his ability [sic] do relatively well on smooth surfaces.
DAVID GREENBAUM, Special Chairman PAT WEST HUMPHREY, Commissioner
[20] Commissioner Wilson dissents. [21] DISSENTING OPINION[22] I respectfully dissent from the majority’s opinion finding that respondents are precluded from re-opening this claim on the compensability of claimant’s left knee injury. Haygood v.Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982) sets forth the prerequisites for remand by the Full Commission on proffer to present newly discovered evidence: (1) The newly discovered evidence must be relevant; (2) it must not be cumulative; (3) it must change the result; and (4) the party seeking to introduce the evidence must be diligent. [23] The evidence reveals that respondent satisfies each of the full requirements set forth in Haygood v. Belcher, supra. As noted by Commissioner Tatum in his dissent in the original Full Commission Opinion the medical opinions addressing causation relied solely upon claimant’s history. The newly discovered evidence clearly reveals that the history which formed the basis of the medical opinions was inaccurate. Despite respondent’s effort to obtain a complete copy of the medical records in Dr. Wilson’s possession, the relevant information regarding claimant’s pre-existing knee condition was not disclosed by Dr. Wilson’s office until 1996. Obviously, this newly discovered evidence plays a pivotal role in the outcome as it undermines the medical opinions on causation. Accordingly, I cannot agree with the majority’s decision to affirm the opinion of the Administrative Law Judge. Based upon my de novo review of the entire record, after weighing the evidence impartially, without giving the benefit of the doubt to either party, I find that the decision of the Administrative Law Judge should be reversed. Therefore, I respectfully dissent from the majority opinion. [24] MIKE WILSON, Commissioner