CLAIM NO. C907939
ARVEL L. DUKES, EMPLOYEE, CLAIMANT, v. COMMERCIAL BUILDERS, INC., EMPLOYER, RESPONDENT, and MARYLAND CASUALTY COMPANY, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 26, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE ROBERT L. HENRY, III, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on September 23, 1993. In that opinion and order, the administrative law judge found that the claimant was entitled to compensation for a 10% permanent physical impairment in addition to the previous award for a 15% permanent physical impairment. In addition, the administrative law judge found that the medical care provided by Dr. Austin Grimes from July 15, 1987, through February 21, 1990, is related to the compensable injury, and the administrative law judge found that the medical care provided by Dr. Grimes beginning in September of 1991, is related to the compensable injury.
[3] The claimant sustained an admittedly compensable injury to his low back on April 11, 1979, and a spinal fusion was performed by Dr. Austin Grimes in 1981. On May 28, 1982, Dr. Grimes released the claimant with a 15% permanent impairment rating. Based on this 15% rating, an administrative law judge filed an opinion and order on February 9, 1983, awarding the claimant permanent partial disability compensation in an amount equal to 25% to the body as a whole, with 15% representing Dr. Grimes’ impairment rating and the remainder representing additional loss of earning capacity. This decision was not appealed. After examining the claimant on June 30, 1983, Dr. Grimes opined that the claimant sustained a 25% permanent physical impairment, but he does not indicate why this differs from his previous rating. The claimant continued to periodically return to Dr. Grimes with complaints of low back and leg pain. Then, on July 31, 1987, the claimant was diagnosed as suffering from multiple myeloma, a form of bone cancer, and Dr. Jacob Amir began treating the claimant for that condition.
[4] The claimant subsequently filed a claim seeking a modification of the prior permanent disability award, contending that his condition had changed and that he was permanently and totally disabled. However, an administrative law judge filed an opinion on June 22, 1989, finding that the change in the claimant’s condition was caused by the myeloma and that the myeloma was not causally related to the compensable injury. Consequently, the administrative law judge found that the worsening of the claimant’s condition was not causally related to the compensable injury. In an opinion filed February 26, 1990, the Full Commission affirmed and adopted the administrative law judge’s June 22, 1989, decision, and that decision was not appealed.
[5] On April 11, 1991, a MRI revealed a multiple myeloma tumor on the claimant’s lumbar spine, and surgery was performed to remove the myeloma tumor on June 21, 1991, by Dr. Zachary Mason. The claimant had previously filed another claim, contending that he was entitled to compensation for medical and related travel expenses and the cost of repairing his exercise bicycle. After conducting a hearing on July 23, 1991, the administrative law judge filed an opinion and order on October 25, 1991, finding that the problems with the claimant’s back were related to the compensable injury and not the multiple myeloma and that the treatment provided by Dr. Grimes and the exercise bicycle were related to these back complaints. Consequently, the administrative law judge found that the respondents were responsible for these expenses.
[6] This matter is currently before the Commission because the claimant has filed yet another claim contending that he is entitled to additional medical benefits and that the award of permanent disability compensation should be modified due to a change in his condition for the worse.
[7] After conducting a de novo review of the entire record, we find that any modification of the prior award is barred by res judicata. Therefore, we find that the administrative law judge’s award of increased permanent disability must be reversed. However, we find that the respondents are responsible for additional medical benefits. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed.
[8] 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 reopening of matters once judicially determined by competent authority. Gwin v. R. D. Hall Tank 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 underlying the doctrine of resjudicata is to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy. Mohawk Tire and Rubber Co. v. Brider,
259 Ark. 728,
536 S.W.2d 126 (1976).
[9] With regard to the claim for modification of the prior award of permanent disability compensation, as discussed, the claimant previously filed a claim contending that the prior award should be modified, and a hearing was held on that claim on April 25, 1989. At the hearing, the claimant contended that he was entitled to increased permanent disability compensation due to a worsening of his condition, and he presented testimony pertaining to his low back and related complaints and pertaining to the effect of these complaints on his activities. As a result of that hearing, the administrative law judge entered an opinion and order finding that the worsening of the claimant’s condition was caused by the myeloma, not the compensable injury, and the administrative law judge denied the claim for increased permanent disability compensation. The administrative law judge’s decision was affirmed and adopted by the Full Commission, and that decision became final when it was not appealed to the Court of Appeals within the time allowed. Nevertheless, at the March 12, 1993, hearing, the claimant again contended that he was entitled to increased permanent disability compensation due to a worsening of his condition, and he presented testimony to support this contention which was essentially the same as the testimony presented at the 1989 hearing.
[10] In short, the claimant is presenting the same issue based on the same facts and evidence as in 1989. Consequently, we find that the claimant’s entitlement to increased permanent disability compensation is barred. In this regard, we note that Dr. Grimes’ increased impairment rating was given in 1983, and, although two hearings were subsequently conducted, the claimant never raised the issue of his entitlement to the increased impairment rating. Since he could have, but did not, raise that issue, the Commission’s consideration of that issue is also clearly precluded by res judicata.
[11] With regard to the respondents’ liability for additional medical expenses, we note the respondents’ contention that they are not responsible for the medical and related travel expenses is based on the same arguments that they raised at the 1991 hearing and which were rejected in the administrative law judge’s opinion and order. In this regard, the respondents contend that they are not responsible for the ongoing care of Dr. Grimes from September of 1991 because it is not causally related to the 1979 injury. Instead, they contend that it is related to the myeloma. However, the respondents raised the same arguments at the 1991, hearing, and the administrative law judge expressly found that the claimant’s back problems related to his compensable injury, not to his cancer. Furthermore, the administrative law judge found that Dr. Grimes’ treatment was provided for the compensable low back problems, not for the cancer.
[12] Certainly, respondents are entitled to challenge the reasonable necessity and causal relationship of medical services provided after a decision of this Commission. However, in the present claim, the causal connection of the claimant’s low back complaints to the compensable injury has already been decided in a final order, and the respondents have not suggested that these complaints somehow differed after the administrative law judge’s 1991 decision. In fact, the respondents acknowledge in their brief that the claimant’s low back complaints have remained essentially unchanged since at least the 1989 hearing. Therefore, like the claimant, it appears that the respondents are also trying to relitigate an issue that has been previously decided by the Commission, and we find that they are barred from doing so.
[13] Furthermore, even if they were not barred from raising this contention, we would find that the preponderance of the evidence establishes that the services provided by and at the direction of Dr. Grimes after the 1991 hearing are causally related to his compensable injury. In this regard, the medical records establish that Dr. Grimes’ services have been limited to the treatment of the claimant’s lumbar condition, with the exception of his services during the 1991 tumor surgery. Dr. Amir testified that pain associated with a specific area, such as that experienced by the claimant, is not caused by the multiple myeloma, which is a systematic disease and does not produce symptoms that are limited to one area. In addition, Dr. Mason testified that there is no pain in the area of a tumor once it is removed, and he opined that the claimant’s complaints are causally related to the compensable injury. Consequently, we would find that Dr. Grimes’ treatment was causally related to, and reasonably necessary for the treatment of, the compensable injury.
[14] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that any modification of the prior award of permanent disability is barred by res judicata. Therefore, we find that the administrative law judge’s increase of that award must be reversed. However, we find that the respondents are responsible for the medical care provided for the treatment of the low back complaints. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. The respondents are ordered and directed to comply with the order found in the administrative law judge’s September 23, 1993, opinion and order, with the exception of the award of additional permanent disability benefits. In addition, the respondents are ordered and directed to comply with all other prior orders of the Commission, if they have not already done so.
[15] 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 Administrative Law Judge’s decision in accordance with Ark. Code Ann. §
11-9-809
(1987). For prevailing in part on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. §
11-9-715 (b) (1987).
[16] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[17] Commissioner Humphrey concurs.
