CARIKER v. OZARK OPPORTUNITIES, 1997 AWCC 432

CLAIM NO. E319129

ALVON GLENN CARIKER, EMPLOYEE, CLAIMANT v. OZARK OPPORTUNITIES, EMPLOYER, RESPONDENT and WAUSAU, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 5, 1997

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by MARK CARNEY, Attorney at Law, Mountain Home, Arkansas.

Respondent represented by RANDY MURPHY, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed February 3, 1997 finding that the doctrine of resjudicata does not apply to this claim. Based upon our de novo
review of the entire record, we find that claimant’s request for medical treatment associated with reflex sympathetic dystrophy, causalgia, or any other chronic type syndrome is barred by the doctrine of res judicata.

[3] Claimant sustained an admittedly compensable injury on December 9, 1993, when he amputated the right middle finger while using a table saw during the course and scope of his employment. Claimant’s injury was accepted as compensable and all appropriate benefits were paid. Claimant was initially treated for his compensable injury by Dr. Thomas Knox of Mountain Home. Dr. Knox referred claimant to Dr. Moore of the Arkansas Hand and Microsurgery Center. Dr. Moore referred claimant to Dr. Reginald Rutherford of the Pain Care Center. Dr. Rutherford referred claimant to Dr. Winston Wilson a clinical psychologist for psychological testing. Both Dr. Moore and Dr. Rutherford indicated in reports in the fall of 1994 that the claimant was discharged and released from their care. [4] Claimant moved to Tennessee and requested a hearing for a change of physician. A hearing was held before Administrative Law Judge Gary Shelton on June 7, 1995. Prior to Judge Shelton delivering an opinion, Judge Shelton resigned from this Commission. Administrative Law Judge Michael White was assigned the file and rendered an Opinion on November 2, 1995. At the hearing held on June 7, 1995, respondent not only contended that the claimant was not entitled to a change of physician, but also contended that claimant was not entitled to further medical treatment at respondent’s expense since any additional treatment is not reasonably necessary to claimant’s compensable injury. Thus, the issue of whether additional medical treatment is reasonably necessary for the treatment of claimant’s compensable injury was litigated at the initial hearing. [5] Moreover, in order for the Administrative Law Judge to make a determination regarding claimant’s entitlement to a change of physician, a determination had to be made by the Commission as to whether the request was justified. In order for Administrative Law Judge White to determine whether the requested change was justified, Judge White had to evaluate whether the treatment sought through the change of physician was reasonable and necessary for the treatment of claimant’s compensable injury. [6] We simply cannot agree with the narrow view of the issues litigated at the initial hearing taken by Judge Danielson and the claimant since reasonable and necessary medical treatment had to be considered and was considered in this case prior to a determination being made with regard to claimant’s request for a change of physician. In order to render his opinion after the initial hearing, Judge White had to evaluate additional medical treatment and made a specific finding regarding this treatment, as follows:

The claimant has failed to prove by a preponderance of the evidence that further evaluation or treatment for reflex sympathetic dystrophy, causalgia, or any other chronic pain syndrome is reasonably necessary for treatment of his compensable injury . . .

[7] In the discussion portion of his Opinion, Judge White succinctly explained his analysis regarding the above finding, as follows:

At the hearing in this matter, the claimant testified that he wanted to change physicians `cause there was something wrong with my hand.’ In this regard, he indicated that he can move the fingers of his right hand only minimally, and he testified that his hand has become scaly on three occasions, including the time of the hearing. In addition, he testified that he has no grip strength.
In short, prior to seeking treatment at the Campbell Clinic, the claimant had been extensively evaluated and treated by at least three orthopedic specialists and two pain specialists, and these physicians have conclusively ruled out the possibility of reflex sympathetic dystrophy. In addition, causalgia has been rejected as a cause of the claimant’s continued problems. Moreover, the evidence indicates that the claimant’s problems are caused either by a phantom pain syndrome, by conversion reaction, or by some superimposition of these conditions on each other. In this regard, the medical evidence indicates that no treatment is indicated for the phantom pain syndrome. Moreover, the claimant has not requested treatment for the conversion reaction and he has not contended that the conversion reaction is causally related to his compensable injury. Therefore, I find that the claimant has failed to prove by a preponderance of the evidence that further evaluation for reflex sympathetic dystrophy, causalgia, or any other chronic pain type syndrome is reasonably necessary for the treatment of claimant’s compensable injury.

[8] In making the findings, Administrative Law Judge White did note that the claimant sustained a traumatic physical injury and found that claimant is entitled to further medical treatment by Dr. Knox for the compensable injury. [9] After receiving Judge White’s Opinion, neither party appealed and the decision became final. Rather than appeal the decision, claimant has taken a narrow interpretation of the Opinion contending that it only applies to claimant’s requested change of physician and that all treatment subsequent to the Opinion related to reflex sympathetic dystrophy, causalgia, or other chronic pain syndrome should be the responsibility of respondent. In our opinion, this interpretation clearly ignores the findings and intent of Judge White’s Opinion. In the pre-hearing order filed September 19, 1996, by Judge Elizabeth Danielson, the issues to be litigated by Judge Danielson were set forth. These issues were “compensability of claimant’s reflex sympathetic dystrophy, additional medical and/or unpaid medical, and attorney’s fees.” [10] Res judicata applies where there has been a final adjudication on the merits of an issue by a Court of competent jurisdiction on all matters litigated and those matters necessarily within the issue which might have been litigated.Perry v. Leisure Lodges, 19 Ark. App. 143, 718 S.W.2d 114 (1986). The doctrine of res judicata bars the re-opening of matters once judicially determined by competent authority. Gwin v. R.D. HallTank Co., 10 Ark. App. 12, 660 S.W.2d 947 (1983). Res judicata
applies to decisions of the Workers’ Compensation Commission.Perry, Supra; Gwin, Supra. The rationale underlining the doctrine of res judicata is to end litigation by preventing a party who has had one fair trial at a question of fact from again drawing it into controversy. Mohawk Tire Rubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126 (1976). [11] In the present case, we find that claimant’s request for medical treatment of the alleged reflex sympathetic dystrophy was clearly included in the issues presented at the first hearing and is now res judicata. In that regard, the evidence presented at the first hearing indicated that respondent contended that additional medical treatment for reflex sympathetic dystrophy was not reasonably necessary for the treatment of claimant’s compensable injury. Moreover, in order for the Administrative Law Judge to adequately determine whether claimant was entitled to a change of physician, the Administrative Law Judge had to determine whether the requested change of physician was justified. In this particular case, in order to determine whether the request was justified, the Administrative Law Judge had to examine and evaluate the requested treatment. That treatment was specifically found not to be related to claimant’s compensable injury and not reasonably necessary for the treatment of claimant’s compensable injury. [12] In Denver Gulley v. Mt. View Water and Sewer Dept., FC Opinion October 23, 1996, (D409366 E410605) the claimant contended that his request for medical benefits was not resjudicata since the Commission did not make a specific finding with regard to claimant’s request for a medical physician. InGulley, we held:

Although the opinion and order filed by the Full Commission on July 13, 1995, did not expressely reference the claimant’s request for medical care to be provided by either a chiropractic physician or a medical physician, that opinion an order did expressely find that the medical records indicate that `the injuries sustained by the claimant were relatively minor sprain/strain type injuries,’ and the medical treatment indicates that he recovered from these injuries without any permanent residual effects.
Therefore, the issue of additional medical care by either a chiropractic physician or a medical physician was clearly decided in the negative based on our express findings, inter alia, that the claimant’s compensable injuries had resolved, and by our finding that the claimant failed to prove that any past or future chiropractic care at issue in the claim was reasonably necessary for treatment of his compensable injuries. Moreover, the reasonable necessity of any type of medical treatment for the claimant’s compensable injuries was clearly settled by our determination that the claimant had recovered from his compensable injuries without any permanent residual effects.

[13] In the present case, it is even more clear than in Gulley
that the issue of claimant’s entitlement to medical treatment for his reflex sympathetic dystrophy, causalgia, or other pain type syndromes are not related to claimant’s compensable injury. The Administrative Law Judge made an express finding of fact to that extent. Claimant cannot now attempt to re-litigate this issue in light of Judge White’s findings in the initial opinion and order. [14] Accordingly, after reviewing the entire record, and for those reasons discussed herein, we find that the claimant’s claim for medical treatment of his reflex sympathetic dystrophy, causalgia, or other pain type syndromes is barred by res judicata. Therefore, we find that the decision of the Administrative Law Judge is reversed. [15] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[16] Commissioner Humphrey dissents.

[17] DISSENTING OPINION
[18] I must respectfully dissent from the majority opinion which finds that claimant’s request for additional medical treatment associated with reflex sympathetic dystrophy, causalgia, or any other chronic syndrome is barred by the doctrine of res judicata.

[19] Claimant suffered an amputation injury to his right middle finger on December 9, 1993, which respondents accepted as compensable. Though he initially responded well to conservative treatment, claimant eventually began to experience lingering difficulties with his right hand which a number of physicians were unable to resolve. [20] Claimant ultimately sought a change of physician before Administrative Law Judge Gary Shelton on June 7, 1995. Judge Shelton resigned from this Commission before rendering an opinion, and Administrative Law Judge Michael White assumed responsibility for that task. On November 2, 1995, Judge White entered an opinion and order which included the following findings:

2. The claimant has failed to prove by a preponderance of the evidence that further evaluation or treatment for reflex sympathetic dystrophy, causalgia, or any other chronic pain syndrome is reasonably necessary for treatment of his compensable injury.
3. The claimant is authorized to return to Dr. Thomas Knox for any medical treatment that is reasonably necessary for treatment of his compensable injury.

[21] Subsequently, claimant brought the instant claim seeking additional medical treatment primarily for reflex sympathetic dystrophy. Respondents contended that such a request was barred by the doctrine of res judicata, since Judge White had already found that further evaluation and treatment for reflex sympathetic dystrophy was not reasonably necessary. A majority of this Commission agreed, and reversed Administrative Law Judge Elizabeth Danielson’s award of benefits entered on February 3, 1997. [22] I am first of all concerned by the majority’s implication that claimants must universally prove that further medical care is reasonably necessary before a change of physician may be granted. In this particular claim, it was appropriate for Judge White to pass upon the issue of reasonably necessary treatment since respondents specifically raised that issue as a defense. In the absence of such a contention, I do not believe it would have been appropriate to deny a requested change of physician on the grounds that additional treatment was not reasonably necessary. Indeed, it is not even necessary that a claimant remain within his or her healing period in order to seek a change of physician. See WrightContracting v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). [23] As for the merits of this case, claimant did return to Dr. Knox on November 27, 1995, who recorded the following observations and comments:

I have not seen Alvon is follow-up for approximately 14 months. Today, he is complaining of severe, incessant pain in his hand. He has an interesting exam. His hand is drawn, has little movement in the fingers. Basically from the wrist distal, the hand is cold. He has dystrophic, shiny changes to the skin. It is blanched. It is cool to touch. He also is noting some pain in his shoulder. This man has classic findings at this point at least I think of severe reflex sympathetic dystrophy . . . I am going to try sympathetic blocks, vigorous physical therapy in Jonesboro. Have him get about 3 to 4 blocks over a week. And then have therapy instituted at St. Bernard’s as well daily.

[24] The majority essentially places claimant in a Catch 22 position. Judge White’s opinion does not purport to find that all
further medical care would be unreasonable or unnecessary for claimant’s compensable injury, and indeed permitted him to return to Dr. Knox for such care as may have been reasonably necessary. By obtaining additional follow-up care from Dr. Knox, claimant has done no more than comply with Judge White’s previous order, and now returns to the Commission having presented objective findings consistent with “severe reflex sympathetic dystrophy.” However, because the majority has applied the doctrine of res judicata even in the face of claimant’s changed circumstances, Dr. Knox is essentially precluded from providing the reasonably necessary care contemplated by Judge White’s original opinion and order. [25] Based on the foregoing, I respectfully dissent from the majority opinion. [26] PAT WEST HUMPHREY, Commissioner