Opinion
CLAIM NO. E518255
ORDER FILED JANUARY 5, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FLOYD THOMAS, Attorney at Law, El Dorado, Arkansas.
Respondents represented by the HONORABLE DAVID WILSON, Attorney at Law, West Memphis, Arkansas.
ORDER
This matter comes before the Full Commission on the claimant's Petition to Modify an award entered by the Full Commission on May 12, 1998. After duly considering the claimant's petition, the respondents' response, and all other matters properly before the Commission, we remand this matter to the administrative law judge for further proceedings.
The claimant sustained a compensable back injury on November 30, 1995. According to an April 8, 1996 radiology report, an MRI indicated a posterior herniation at T9-10 with slight impingement upon the thoracic spinal cord. According to a February 13, 1997, radiology report, the claimant also sustained very small left side "recess" disc herniations at T3-4 and T4-5, in addition to a small, broad-based, right lateral "recess/foraminal" disc herniation at T9-10. Dr. Scott Hunter reported that he saw no compression of the spinal cord, but that the T9-10 disc herniation abuts the spinal cord. In a report dated May 8, 1997, Dr. Robert Dickins assigned the claimant a 3% impairment to the body as a whole, with 2% representing a disc herniation at one level and the additional 1% impairment for a second level, pursuant to the AMA Guides 4th Ed.
In our May 12, 1998 opinion, we noted that the claimant asserted that Dr. Dickins' impairment rating underestimated the claimant's anatomical impairment. The claimant maintained that his impairment rating should be 4% to the whole body, not 3%, on the assertion that the claimant actually has experienced three thoracic disc herniations (T3-4, T4-5, and T9-10). However, we found that none of Dr. Dickins' reports after February 13, 1997 indicated that the claimant had three disc herniations; rather, Dr. Dickins' impairment rating report indicated that the claimant sustained two disc herniations. The claimant's attorney received our May 12, 1998 order on May 15, 1998. Neither party appealed the Commission's opinion, which has thus become final.Morrison v. Tyson Foods, Inc., 11 Ark. App. 161, 668 S.W.2d 47 (1984).
On September 21, 1998, the claimant filed a Petition to Modify Award, pursuant to Ark. Code Ann. § 11-9-713:
(a)(1) Except where a joint petition settlement has been approved, the Workers' Compensation Commission may review any compensation order, award, or decision.
(2) This may be done at any time within six (6) months of termination of the compensation period fixed in the original compensation order or award, upon the commission's own motion or upon the application of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate.
To support his petition, the claimant attaches: (1) The February 13, 1997 MRI report already considered by the Commission; (2) Claimant's August 3, 1998 post-hearing request to Dr. Dickins to clarify the impairment rating; and (3) August 6, 1998 correspondence from Dr. Dickins. In the August 3, 1998 letter to Dr. Dickins, the claimant states his position that he is entitled to a 4% whole body rating, rather than the 3% rating. The claimant bases his belief on supposed disc herniation at three levels. Dr. Dickins responded on August 6, 1998:
I agree with your interpretation reviewing the AMA Guidelines for physical impairment. If physical impairment is going to be estimated for the presence of the MRI abnormalities, 4% is the correct percentage.
The claimant contends that the Commission should reconsider its award and find that the claimant has a 4% anatomical impairment rating. Additionally, argues claimant, the Commission should consider whether or not the claimant's wage loss disability rating should be increased. For their response, the respondents contend that the claimant merely argues the same point he already raised to the administrative law judge and Full Commission. The respondents assert that the matter of claimant's anatomical rating is now res judicata. The respondents argue that Dr. Dickins' latest report is supplemental in nature, and that the claimant could have requested this report prior to hearing. The respondents state further that the claimant's physical condition has not changed, and that there is no evidence that the claimant's wage rate was miscalculated. The respondents submit that the Commission should deny the claimant's petition and award costs to them.
Ark. Code Ann. § 11-9-713 (Repl. 1997) provides that the Commission may modify a final award only after it is shown that the claimant's physical condition has changed, or if an erroneous wage rate was assigned. United States Fidelity Guar. Co. v. Brewer, 52 Ark. App. 214, 916 S.W.2d 773 (1996). We agree with the respondents that the claimant's physical condition and degree of anatomical impairment as of May 12, 1998 is now res judicata. However, no record has been developed in this case for our review on the issue as to whether the claimant has experienced a change in physical conditionafter May 12, 1998, within the meaning of Ark. Code Ann. § 11-9-713. Consequently, we direct the Clerk of the Commission to assign this matter to an administrative law judge to develop a record on this issue and to enter appropriate findings on whether the claimant's physical condition has changed after May 12, 1998.
IT IS SO ORDERED.
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Commissioner Wilson Concurs.
Commissioner Humphrey dissents.