CLAIM NO. D902929
Before the Arkansas Workers’ Compensation Commission
OPINION FILED APRIL 15, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DAVID McCORMICK, Attorney at Law, Russellville, Arkansas.
Respondent represented by WILLIAM H. TRICE, III, Attorney at Law, Little Rock, Arkansas.
[1] OPINION AND ORDER[2] This matter is before the Full Commission on remand from the Arkansas Court of Appeals. In its opinion rendered January 14, 1998, the Court of Appeals remanded this case stating:
[3] As noted by the Court the procedural history of this case is not typical. After a hearing where the respondent failed to appear, the Administrative Law Judge entered an order finding claimant permanently and totally disabled and ordering respondent to pay the maximum attorney’s fees pursuant to Ark. Code Ann. §11-9-715, 11-9-716, 11-9-801 and WCC Rule 10 on November 25, 1992. After an agreement by the parties, the November 25, 1992, order was set aside and a second hearing was held. On March 12, 1993, the Administrative Law Judge entered a second order again finding claimant permanently and totally disabled and ordering respondent to pay the maximum attorney’s fees pursuant to Ark. Code Ann. § 11-9-715, 11-9-716, 11-9-801, and WCC Rule 10. This order was not appealed and became a final order after thirty days. On June 20, 1993, respondent filed a motion for a hearing before the Full Commission. Pursuant to this motion, the Administrative Law Judge entered an opinion on September 26, 1995, setting forth the amount of attorney’s fees owed by respondent pursuant to the March 12, 1993, order awarding fees. This order was appealed to the Full Commission which entered an opinion and order on March 13, 1997. Claimant appealed the Full Commission order to the Arkansas Court of Appeals and it is this order which is currently on remand before the Full Commission. [4] The issue which we are ordered by the Court to address is the propriety of the Administrative Law Judge to hear the motion of respondent to determine the amount of attorney’s fees based upon the previous order. It is undisputed that the Administrative Law Judge’s March 12, 1993, order became final when it was not appealed. Thus, it would be inappropriate to relitigate the issues settled by that opinion. In our opinion, the September 26, 1995, opinion does not in any way attempt to re-litigate those issues which have become res judicata. 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. Gwinv. 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 res judicata 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). However, the doctrine does not bar issues which were not previously decided and could not have been decided. The September 26, 1995, order attempts to settle and clarify the award of fees awarded in the March 12, 1993, opinion. The March 12, 1993, order awarded an attorney’s fee to be paid in lump sum; however, the opinion did not calculate the lump sum fee. Subsequent to receiving the opinion, the parties could not agree on the amount of the lump sum fee awarded. In our opinion, the subsequent hearing on respondent’s motion to determine the amount of the fee, and the manner in which the fee is to be paid addresses a collateral matter which was not litigated and settled in the March 12, 1995, opinion. Therefore, we find that the issue regarding the amount of fees awarded and the manner in which to calculate the fees are not res judicata. While claimant’s attorney contended entitlement to a fee based upon controversion, the amount of the actual fee was never litigated until respondent’s motion. Therefore, we find that the Administrative Law Judge had jurisdiction to hear respondent’s motion and to calculate the amount and manner of fees awarded in the March 12, 1993, opinion. [5] IT IS SO ORDERED.. . . the Commission has never addressed the timeliness issue raised by appellant. It is a jurisdiction issue that cannot be waived by the parties, and it is one that should be addressed in the first instance by the Commission.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[6] Commissioner Humphrey concurs.