Opinion
CLAIM NO. E101484
OPINION FILED FEBRUARY 7, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE WILLIAM KIRBY MOUSER, Attorney at Law, Pine Bluff, Arkansas.
Respondents represented by the HONORABLE JOSEPH E. KILPATRICK, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the administrative law judge on June 9, 1994. In that opinion and order, the administrative law judge found that the claimant was temporarily and totally disabled from January 16, 1991 through February 4, 1994. However, after conducting a de novo review of the entire record, we find that the claimant failed to prove that his healing period extended beyond July 1, 1991. Therefore, we find that the administrative law judge's decision must be reversed.
Initially, we find that we are not barred from considering the duration of the claimant's healing period. The claimant sustained an admittedly compensable back injury on January 15, 1991, and the respondents paid certain indemnity and medical benefits. However, he filed a prior claim contending that he was entitled to a change of physicians to Dr. Harold Chakales and that respondents were liable for treatment previously provided by Dr. Chakales. A prior hearing was held on April 16, 1992, to consider this claim. With regard to this issue, the respondents contended that treatment by Dr. Chakales was not authorized and that the claimant had failed to follow the rules for a change of physicians. In addition, the respondents contended that he was not entitled to additional treatment because his healing period had ended. In a decision filed July 30, 1992, the administrative law judge found that the change of physician rules did not apply due to the respondents failure to provide the claimant with a copy of those rules. In addition, the administrative law judge found that treatment by Dr. Chakales was reasonably necessary for treatment of the compensable injury. In finding that the treatment was reasonably necessary, the administrative law judge also found that the claimant remained in his healing period and was entitled to medical treatment subsequent to July of 1991. The respondents petitioned the Full Commission for review of the administrative law judge's July 30, 1992, decision, and, in an opinion and order filed April 12, 1993, this Commission found that the respondents were liable for treatment provided by Dr. Chakales. However, we remanded the claim to the administrative law judge for development of an issue which he decided but which was not raised by the parties at the hearing.
Now, the claimant contends that any questions pertaining to the end of his healing period are res judicata at least through April 12, 1993, when the Full Commission filed our prior opinion and order. However, we find thatres judicata does not bar our consideration of this issue.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 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, our April 12, 1993, opinion and order, in no manner whatsoever involved any determination related to the claimant's healing period. The respondents appeared to argue at that time that the claimant was not entitled to a change of physician or to any further medical treatment because the claimant's healing period had ended. However, neither of those issues are dependent on the healing period. At one time, a claimant's right to change physicians was controlled primarily by the rules of this Commission, and the rules did not permit a change of physicians after the healing period ended. See, Bradford v. Timex Corp., 270 Ark. 184, 604 S.W.2d 472 (Ark.App. 1980). However, the General Assembly ultimately statutorily enacted the change of physician rules which are now found, as amended, at Ark. Code Ann. § 11-9-514 (Cumm. Supp. 1993), and these statutory rules, not the Commission rule, subsequently controlled changes of physicians. Moreover, the statutory rules did not make the healing period a factor for consideration in any sense in approving a change of physicians. In fact, in interpreting the statutory rules, the Court of Appeals found that, "[u]nder the present law . . ., [the claimant's] healing period is of no significance."Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). Likewise, the respondents' obligation to provide reasonably necessary medical care is not dependent on the claimant's healing period, for respondents remain liable for medical care reasonably necessary to maintain and control the claimant's condition even after the healing period has ended.
Consequently, even though the parties may have discussed the claimant's healing period when this claim was previously before us, we did not make any findings regarding the end of the healing period, for the end of the healing period simply was not directly relevant to the issues before us. Likewise, the issue was not necessarily within any issue that was decided. Furthermore, any statements made by the administrative law judge do not bar our consideration of this issue, for it was the opinion of the Full Commission, not the administrative law judge, that ultimately became final. See, e.g., White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990). Consequently, there has been no adjudication of this issue, and we are not barred from now considering it.
Regarding the claimant's entitlement to temporary total disability compensation, temporary disability is determined by the extent to which a compensable injury has affected the claimant's ability to earn a livelihood. An injured employee is entitled to temporary total disability compensation during the period of time that he is within his healing period and totally incapacitated to earn wages.Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). An injured employee is entitled to temporary partial disability compensation during the period that he is within his healing period and suffers only a decrease in his capacity to earn the wages that he was receiving at the time of the injury. Id. The "healing period" is defined as the period necessary for the healing of an injury resulting from an accident. Ark. Code Ann. § 11-9-102 (6) (1987). The healing period continues until the employee 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, and the claimant is no longer entitled to receive temporary total disability compensation or temporary partial disability compensation, regardless of his physical capabilities. Moreover, the persistence of pain is not sufficient in itself to extend the healing period or to find that the claimant is totally incapacitated from earning wages. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
In the present claim, we find that the claimant failed to prove by a preponderance of the evidence that his healing period extended beyond July 1, 1991. He sustained an admittedly compensable injury to his low back on January 15, 1991, and he was first treated by Dr. Thomas Duckworth, a general practitioner. Dr. Duckworth diagnosed an acute lumbar strain, and he treated the claimant conservatively with medication and physical therapy. Due to the persistence of the claimant's complaints, Dr. Duckworth ordered a CT scan and a MRI, in addition to x-rays that had been taken previously, but none of these tests revealed anything other than degenerative disc changes. On August 30, 1991, the claimant was examined by Dr. J. K. Smelz, a physiatrist. Based on her examination, Dr. Smelz diagnosed piriformis syndrome on the right and paravertebral muscle spasm in the right lumbar area. In addition, she recommended a carefully controlled physical therapy program. However, the claimant rejected Dr. Smelz's suggestions.
In addition, at the claimant's request, Dr. Duckworth referred him to Dr. Chakales, and Dr. Chakales saw the claimant on October 16, 1991. However, due to the respondents' refusal to authorize treatment by Dr. Chakales, he did not see the claimant again until after the Commission's April 12, 1993, opinion and order was filed. When he did assume treatment of the claimant, Dr. Chakales ordered additional testing. Electrodiagnostic studies revealed abnormal results which were compatible with some type of inflammatory process, hyperthyroidism, or some kind of muscle disease. Dr, Chakales also ordered a discogram, which indicated an annular tear at L4-5 and at L5-S1 as well as some nerve root involvement. Based on these findings, Dr. Chakales concluded that the claimant had sustained an "internal derangement of the intervertebral disc where there's not a true discal herniation" and that he had "chronically irritated nerves." Nevertheless, Dr. Chakales recommended the same type of conservative treatment that had been prescribed by Dr. Duckworth.
The claimant testified that he continued to experience pain and severe physical limitations. However, we find that his condition had stabilized and that no further treatment would improve the condition by July 1, 1991. In this regard, Dr. Duckworth's records indicate that the claimant demonstrated very little improvement during the time that he treated him, and Dr. Duckworth testified that the claimant's condition had stabilized by the summer of 1991. Moreover, Dr. Duckworth's testimony indicated that the claimant had healed as much at that point as his underlying condition would allow. Notably, a rehabilitation report dated June 14, 1991, indicates that Dr. Duckworth had opined on May 28, 1991, that the claimant would not get any better unless he lost weight, and this report indicates that the claimant was only exerting a minimal effort to attempt the physical therapy and exercise program recommended by Dr. Duckworth. When Dr. Chakales resumed treatment of the claimant in 1993, he opined that the claimant was temporarily and totally disabled. However, his reports indicate that his treatment was aimed at managing the claimant's pain, and these reports do not indicate that Dr. Chakales recommended anything which could reasonably be expected to provide significant improvement of the underlying condition. Moreover, Dr. Chakales also treated the claimant for carpal tunnel syndrome and cervical spine problems which were not related to the compensable injury, and his opinion regarding the claimant's temporary total disability was based to some extent in the aggregate effect of these conditions. Consequently, we find that the preponderance of the evidence indicates that the claimant's condition had stabilized and that nothing further would improve that condition at least by July 1, 1991. In reaching this conclusion, we note that the evidence indicates that the claimant rejected any suggestions which his medical care providers indicated might improve his condition. Furthermore, the claimant testified that he has not experienced any improvement in his condition since the summer of 1991.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find claimant proved by a preponderance of the evidence that he is entitled to temporary total disability compensation from January 16, 1991, through July 1, 1991. Therefore, we find that the administrative law judge's decision must be, and hereby is, reversed. This claim is denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.