Opinion
CLAIM NO. E807346
OPINION FILED OCTOBER 18, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE SHANNON MUSE CARROLL, Attorney at Law, Hot Springs, Arkansas.
Respondents #1 represented by HONORABLE DAVID E. SMITH, Attorney at Law, Benton, Arkansas.
Respondents #2 represented by HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an Administrative Law Judge's opinion filed October 22, 2001. The Administrative Law Judge found that the claimant was temporarily totally disabled from June 23, 1998 through November 8, 1998, and continuing through May 25, 2001, "exclusive of those periods in the interim wherein the claimant was temporarily partially disabled." After reviewing the entire record de novo, the Full Commission affirms the opinion of the Administrative Law Judge.
I. HISTORY
The parties have stipulated that Victor Stone, age 45, sustained a compensable injury on June 20, 1998. The parties stipulated that Respondent No. 2 was the prime contractor for the job involving Respondent No. 1 as subcontractor on June 20, 1998. The claimant testified that he stepped on a board and sustained a hit to his knee with a wrecking bar.
Dr. Dale Kincheloe reported on August 12, 1998:
The pt. said he was at work on the 20th of June and he struck the area where he is tender with a wrecking bar. He said the following day, it swelled so bad he could not be on it. He says he has not been working any since that time. . . .
IMPRESSION: Contusion to the knee with persistent inflammation in the region of the pes anserine bursa. 2) Secondary muscle weakness.
Dr. Kincheloe kept the claimant off work, and his impression on August 26, 1998 was "Contusion of knee."
On or about October 7, 1998, Dr. Kincheloe's impression was "Tear of medial meniscus, left knee, with possibility of an anterior cruciate ligament tear." Dr. Kincheloe recommended an arthroscopic evaluation, but this procedure was not carried out by Dr. Kincheloe. The respondents controverted the claimant's entitlement to this procedure.
Therefore, Mr. Stone claimed entitlement to worker's compensation. The claimant contended that he sustained a compensable injury on June 20, 1998. The claimant contended that he was entitled to temporary total disability compensation from June 20, 1998 until a date to be determined, reasonably necessary medical treatment, and an attorney's fee. Respondent No. 1 contended that the claimant did not sustain a compensable injury. Respondent No. 2 contended that if the Commission determined that the claim was compensable, then Respondent No. 2 was entitled to reimbursement from Respondent No. 1 for any benefits paid.
An Administrative Law Judge filed an opinion on January 5, 1999, and found that the claimant failed to prove that he sustained a compensable injury on June 20, 1998. The Administrative Law Judge denied and dismissed the claim, and the claimant appealed to the Full Commission.
In an opinion filed March 2, 2000, the Full Commission reversed the Administrative Law Judge's decision and found that the claimant proved that he sustained a compensable injury on June 20, 1998, for which the claimant was entitled to reasonably necessary medical treatment. The Full Commission discussed the claimant's entitlement to temporary total disability compensation:
Claimant testified that Dr. Kincheloe has approved light duty work. He stated that he began working on a part-time basis at Phoo's (sic) Nursery. It is claimant's testimony that his work for the nursery began one month before the hearing, which was held on December 8, 1998. . . . Although claimant was not excused from work by a physician until August 12, 1998, we are convinced that he was disabled effective June 23, 1998. . . . Therefore, we find that claimant has demonstrated entitlement to temporary total disability benefits from June 23, 1998 through November 8, 1998.
In an opinion filed March 13, 2000, the Full Commission found that the March 2, 2000 opinion contained a clerical error. The March 2, 2000 opinion failed to include a concurring and dissenting opinion by Commissioner Wilson. The Full Commission amended the March 2, 2000 opinion to include the concurring and dissenting opinion. "In all other respects, the said opinion and order shall remain the same and shall not be otherwise affected."
The Full Commission's March 13, 2000 opinion was not appealed by any party. The parties have stipulated that the respondents paid temporary total disability compensation and provided medical treatment through November 8, 1998.
Respondent No. 1's attorney queried the claimant:
Q. You didn't see Dr. Kincheloe after October 7th of `98, did you?
A. He retired. I don't recall.
Q. You didn't see any doctors during that period of time, did you?
A. I don't think so. . . . I didn't have any money or funds.
The claimant presented to Dr. Robert J. Olive, Jr. on May 2, 2000:
He has been seen by Dr. Kincheloe in 10/98. There was a question as to whether or not there was a tear of an ACL. He thought about scoping his knee at that time, but apparently Mr. Stone's activities simply became too hectic at that time to carry on with the scope. He comes in today with continued pain with the left knee. This has been going on for at least two years. He states it clicks, locks and pops. He has generalized aches and pains in the area. He has trouble getting up and down out of a chair and twisting the knee particularly. . . .
X-rays reveal calcifications with the menisci. Appears to be almost on the surfaces of the meniscus. I am not sure that this was from old cortisone injections as well with radio-opaque material. However does have medial joint-space narrowing, some osteophyte formation, and some peaking of the intercondylar eminences.
Dr. Olive assessed "Probable internal derangement, left knee" and arranged an MRI scan.
An MRI of the left knee was taken on October 3, 2000, with the following impression:
1. Small knee joint effusion.
2. There is an oblique tear through the posterior horn of the medial meniscus.
3. There are degenerative changes in the lateral meniscus.
4. The remainder of the exam is unremarkable.
The claimant was assessed with "Medial meniscus tear, left knee demonstrated by MRI." Dr. Olive performed surgery on October 31, 2000. Dr. Olive reported on November 10, 2000 that the claimant was doing better but still had swelling in his knee. Dr. Olive's impression was "Satisfactory post-operative course of arthroscopy, left knee, subtotal medial meniscectomy and also chondral drilling secondary to chondral defects." Dr. Olive planned aggressive physical therapy. The claimant followed up with Dr. Olive on December 4, 2000:
Overall I think he is doing incredibly well at this time. He is up and around and working again. He has been digging ditches, and building cabinets. He seems to be doing extremely well in terms of heavy labor at this time. He has been doing his exercises well also and completed PT at Murfreesboro.
Dr. Olive assessed "Satisfactory postop course of subtotal medial meniscectomy, left knee with good results."
The parties deposed Dr. Olive on December 20, 2000. The claimant's attorney queried the witness:
Q. Doctor, when you saw him for the first time on May 2d 2000, were you familiar at that time with the type of work that Mr. Stone does, that being construction work?
A. More or less, yes.
Q. Would you have anticipated that he would be able to perform construction work with the type of difficulties you were seeing May 2d 2000?
A. No, ma'am.
Q. When, during the course of your treatment and your — well your treatment of Mr. Stone, would you anticipate that he would have been able to return to work?
A. Well, realistically you would be looking anywhere, with heavy construction work I would anticipate anywhere from four to six weeks from his surgery.
Q. And in fact, I believe Mr. Stone, according to your records, has returned to work, is that right?
A. That's correct.
Dr. Olive reported on March 20, 2001:
Overall I think he is doing much, much better. He is up and around doing quite well. He is at work now also and seems to be doing quite well. He states he doesn't have that much pain during the day, but does have some discomfort at the end of the day. . . .
IMPRESSION: Satisfactory post-operative F/U of arthroscopic of knee.
Dr. Olive planned "Continuation of current activities and current work status." The claimant informed Dr. Olive on April 19, 2001, "He states he is up and around doing well and he is a carpenter and has been using the leg quite easily. He denies any numbness or tingling sensations or giving way."
Dr. Olive wrote to the claimant's attorney on May 25, 2001:
I would like to go ahead and give Mr. Stone a rating at this time. This is based on findings at surgery and the procedure performed. Our rating is based on AMA Guides to Permanent Impairment, V Edition. On Page 546, Table 17-33, right column, Mr. Stone has undergone a subtotal medial meniscectomy of the left knee. This gives him a 10% lower extremity impairment and a 1% whole person impairment.
I do feel that he has reached maximum medical improvement. As far as his work activity, he states he has been working as a carpenter and has been using his leg quite easily.
Mr. Stone claimed entitlement to additional worker's compensation, and a pre-hearing order was filed on June 25, 2001. The claimant contended that he was entitled to additional reasonably necessary medical treatment. The claimant contended that he was entitled to temporary partial disability compensation from November 8, 1998 through May 21, 2001, "less six weeks of temporary total disability immediately after claimant's surgery."
Respondents No. 1 and No. 2 contended that the claimant was not entitled to medical treatment after November 8, 1998. Respondent No. 1 contended that the claimant was not entitled to temporary partial disability from November 8, 1998 through May 21, 2001, because the claimant was not within his healing period. Respondent No. 2 contended that if the claimant was awarded additional benefits, then Respondent No. 2 was entitled to a recovery from Respondent No. 1.
The Administrative Law Judge scheduled a hearing on the following issues:
(1) Additional temporary total disability compensation;
(2) Temporary partial disability compensation;
(3) Medical treatment; and
(4) Permanent physical impairment.
After a hearing before the Commission, the Administrative Law Judge found, in pertinent part:
5. The claimant was temporarily totally disabled for the periods beginning June 23, 1998 through November 8, 1998, and continuing through May 25, 2001, exclusive of those periods in the interim wherein claimant was temporarily partially disabled.
6. The claimant was temporarily partially disabled for two (2) partial days in November 1998, wherein he earned $140.00; for six (6) months wherein he worked an average of three (3) days per week on the Darwin Hendricks remodeling project and earned $14,000.00; two weeks during which he built cabinets for his sister and earned $500.00; and nineteen (19) days during which he was employed by J.R. Merritt Construction Company during a paper mill shut-down and in which he earned $4,500.00.
The respondents appeal to the Full Commission.
II. ADJUDICATION
An employee with a scheduled injury is entitled to temporary total disability compensation while he is within his healing period and has not returned to work. Ark. Code Ann. § 11-9-521(a). The healing period continues until the claimant is as far restored as the permanent character of his injury will permit; when the underlying condition causing the disability becomes stable, and when nothing further will improve that condition, the healing period has ended. Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 528 (1997). An employee is not entitled to receive temporary total or temporary partial disability compensation after the end of his healing period. Trader v. Single Source Transportation, Workers' Compensation Commission E507484 (Feb. 12, 1999).
In the present matter, the Full Commission affirms the Administrative Law Judge's findings. Although the respondents initially controverted the claim, the parties have now stipulated that the claimant sustained a compensable injury to his left knee on June 20, 1998. Dr. Kincheloe's impression on October 7, 1998 was "Tear of medical meniscus, left knee, with possibility of an anterior cruciate ligament tear." Dr. Kincheloe recommended an arthroscopic evaluation to treat the claimant's injury. However, the respondents controverted compensability, and the claimant was financially unable to undergo surgery from his treating physician.
In an opinion filed March 13, 2000, the Full Commission awarded temporary total disability compensation from June 23, 1998 through November 8, 1998. The Full Commission noted that the claimant had returned to part-time work on November 8, 1998. However, the record shows that the claimant remained within his healing period as of November 8, 1998, because the claimant was unable to undergo surgery by the treating physician to repair his injury. The claimant credibly testified that his condition did not improve after he was denied medical treatment. Further, despite the claimant's part-time work at a nursery and other part-time positions, the preponderance of evidence indicates that the injured employee was unable to perform remunerative labor with reasonable consistency and without pain and discomfort. Therefore, the Full Commission finds that the claimant had not "returned to work" so as to cut off his temporary total disability compensation. See, Farmers Cooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).
The respondents also assert that the claimant's entitlement to additional temporary disability is res judicata. Res judicata applies when 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 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).
In the present matter, the record shows that the extent of the claimant's healing period for his compensable scheduled injury has never been finally adjudicated by the Commission. Nor has the extent of the claimant's entitlement to temporary partial disability compensation been adjudicated by the Commission. The Full Commission thus finds that the claimant's entitlement to temporary total disability compensation and temporary partial disability compensation is not res judicata.
The Full Commission affirms the Administrative Law Judge's award of additional temporary disability compensation from November 8, 1998 through May 25, 2001. We have determined supra that, because of his compensable injury, the claimant was unable to perform remunerative labor during this period. The claimant's treating physician recommended surgery in October 1998, which would have allowed the claimant to return to work, but the respondents controverted this reasonably necessary treatment. The claimant was unable to obtain the recommended treatment for his scheduled injury until October 2000, when Dr. Olive finally performed surgery. The record indicates that the claimant was able to perform some non-remunerative, part-time employment as of December 2000. Although Commissioner Yates characterizes Dr. Olive's May 25, 2001 letter as a "mere formality," it was only at this point that Dr. Olive pronounced maximum medical improvement.
Based on our de novo review of the entire record, the Full Commission finds that the claimant proved he was entitled to temporary total disability compensation from June 23, 1998 through November 8, 1998, and continuing through May 25, 2001, less those periods detailed by the Administrative Law Judge where the claimant was only temporarily partially disabled. We affirm the Administrative Law Judge's finding that the claimant was temporarily partially disabled for two days in November when he earned $140; for six months when he worked three days a week and earned $14,000; for two weeks when the claimant built cabinets and earned $500, and for 19 days when the claimant earned $4,500 at a construction company. The Full Commission finds that the claimant's healing period ended on May 25, 2001. We find that the claimant proved he was entitled to reasonably necessary medical treatment provided in connection with his compensable injury, and that he was entitled to the anatomical impairment rating assigned by the treating physician. The Full Commission therefore affirms 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 Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, the 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 (Repl. 1996).
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
Commissioner Turner concurs.
CONCURRING OPINION
I concur in all respects with the decision of the Principal Opinion affirming the decision of the Administrative Law Judge. I write separately to address the assertion in the Concurring and Dissenting Opinion that claimant's claim for temporary total disability benefits from November 8, 1998 through October 31, 2000, excepting certain periods during this period in which claimant attempted to return to work and for which he is entitled to temporary partial disability benefits, is barred by the doctrine of res judicata.
It is clear that the doctrine of res judicata does not apply in this case to preclude claimant's claim for temporary total disability benefits from November 8, 1998 through October 28, 2000.
In support of its position, the Concurring and Dissenting Opinion asserts that the Commission had previously determined that claimant's temporary total disability award was closed on November 8, 1998, and that claimant has shown no subsequent change in his condition which would warrant modification of that award. It is true that in our initial opinion filed March 2, 2000, the Full Commission closed the claimant's temporary total disability benefits at November 8, 1998. However, it is important to note that there is absolutely no indication in the March 2, 2000 Opinion that the Commission at any time determined that the claimant's healing period had ended. The opinion reveals that claimant's temporary total disability benefits were closed because claimant testified at the hearing on December 8, 1998 that he had begun working part time at Pooh's Nursery approximately one month earlier. The Commission stated that in order for claimant to be entitled to temporary total disability benefits, he must prove (1) that his healing period continues, and (2) that he is totally incapacitated from earning wages. Incidentally, but of no consequence to the current proceeding, this standard was subsequently held to be the wrong standard for scheduled injuries in the case of Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). In the Armstrong case, the Court of Appeals interpreted Ark. Code Ann. § 11-9-521(a) to mean that for a scheduled injury, the claimant is entitled to temporary total disability until the earlier of the date his healing period ends or the date he returns to work. However, the relevant point is that the Commission closed the temporary total disability award in the prior proceeding not because it found that claimant's healing period had ended, but because it was found that he had returned to work and thus was no longer totally incapacitated from earning wages. Therefore, to the extent that the assertion by the Concurring and Dissenting Opinion that claimant failed to show any change in his condition is an assertion that there was no change in his physical condition, the assertion is immaterial as to the question of whether claimant's claim for temporary total disability benefits from November 8, 1998 to October 31, 2000 is barred by res judicata. Such an assertion would only be relevant if claimant's temporary total disability award had been previously closed due to a determination that the claimant's healing period had ended. To the extent that the assertion of the Concurring and Dissenting Opinion that claimant failed to prove a change in his condition is an assertion that there was no change in his off-work status, such an assertion, as noted above, is contrary to the evidence in the record.
In light of the observation that the initial award of temporary total disability benefits were closed not because of a determination that the claimant's healing period had ended but because as of the hearing date the claimant was working and earning wages, it cannot be determined that any claim by claimant for temporary total disability benefits beyond November 8, 1998 is barred by res judicata. To hold that res judicata operates to preclude any further temporary total disability benefits beyond November 8, 1998 is to hold that when we previously closed claimant's temporary total disability award at November 8, 1998, we made a determination that claimant had permanently "returned to work" for purposes entitlement to temporary total disability benefits under Ark. Code Ann. § 11-9-521(a). As noted above, we did not even apply the Armstrong standard to determine if claimant was entitled to temporary total disability benefits pursuant to this statutory provision. Instead, we determined that claimant was no longer "totally incapacitated from earning wages." Clearly, this prior determination cannot operate as a final decision that claimant had "returned to work" for purposes of entitlement to temporary total disability benefits for a scheduled injury. In any event, as pointed out by the Concurring and Dissenting Opinion, res judicata does not bar future entitlement to temporary total disability benefits if a change of condition is shown. The record indicates that claimant has experienced a change in his condition, i.e., that while he was working part-time as of the date of the first hearing, he is no longer working.
In addition to these observations, it is clear that a claimant's unsuccessful attempt to return to work does not amount to a "return to work" under Ark. Code Ann. § 11-9-521(a). See Farmers Cooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002). Therefore, the fact that the claimant may have been attempting a return to work as of the date of the first hearing in no way precludes a subsequent showing that this attempt was unsuccessful and thus that he is entitled to further temporary total disability benefits. The evidence presented by the claimant in the second hearing indicates that indeed this attempt was unsuccessful, and that he has unsuccessfully attempted to return to work on multiple occasions.
For these reasons, I respectfully concur.
_______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates concurs and dissents.
CONCURRING AND DISSENTING OPINION
I respectfully concur in part and dissent in part from the principal opinion. Based upon my de novo review of the evidence in this case, I would affirm the Administrative Law Judge's award of reasonable medical expenses, the finding that the claimant is entitled to a permanent physical impairment rating of 10% to the left lower extremity, and the finding that Respondent #2 is entitled to reimbursement from Respondent #1. Therefore, I concur in the principal opinion's affirmation of these portions of the Administrative Law Judge's decision. However, I conclude that the claimant is not entitled to any periods of temporary partial disability, and is entitled to temporary total disability only from October 31, 2000, through December 4, 2000, therefore I dissent from the balance of the principal opinion.
I find that the claimant was temporary totally disabled following his surgery on October 31, 2000, until he reached the end of his healing period, which occurred on December 4, 2000. This conclusion is based upon Dr. Olive's note of that date which states that the claimant was:
. . . doing incredibly well at this time. He is up and around and working again. He has been digging ditches, and building cabinets. He seems to be doing extremely well in terms of heavy labor at this time. . . . Continuation of activities as tolerated. . . .
I disagree with the principal opinion's conclusion that the claimant's healing period continued through May 25, 2001. There are no medical records for the five months between December 4, 2000, and May 25, 2001. I find Dr. Olive's letter of May 25, 2001, to be a mere formality in which he assigned a 10% permanent impairment rating that was "based on findings at surgery and the procedure performed" at the request of the claimant for the purposes of this litigation. I do not find this letter to indicate a date certain on which the claimant's healing period ended.
I further find that the claimant is not entitled to temporary total or temporary partial disability benefits from November 8, 1998, through October 28, 2000, as he is barred by the doctrine of 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). In the case of Goodnight v. I Care Network, Full Commission Opinion filed August 13, 2001, Claim No. E804378, the Full Commission reversed an Administrative Law Judge's award of additional temporary total disability from June 1, 1999, until a date yet to be determined, because the Full Commission had found in a prior decision that claimant Goodnight was not entitled to additional temporary total disability compensation after November 23, 1998. Claimant Goodnight had not appealed that prior Full Commission Opinion, therefore, res judicata was found to bar re-litigation of that determination. The only exception to this rule is if there is evidence of change in the claimant's condition following the initial order. Castleberry v. Elite Lamp Company, 69 Ark. App. 359, 13 S.W.3d 211 (2000). In the present claim, the Full Commission's March 2, 2000, opinion was a final adjudication of the issue of when the claimant's entitlement to temporary total disability ended. That opinion established that said period ended on November 8, 1998, when the claimant began working part-time at Pooh's nursery. The claimant's own testimony was that his condition never changed between the time of his injury and the time of his surgery. Therefore, res judicata bars the re-litigation of the claimant's entitlement to temporary total disability until after the change in his condition caused by his surgery.
For the foregoing reasons I respectfully concur in part and dissent in part from the principal opinion.
_____________________________ JOE E. YATES, Commissioner