James R. Brown v. General Medical Corporation et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

JAMES R. BROWN

APPELLANT

V.

GENERAL MEDICAL CORPORATION; LIBERTY MUTUAL INSURANCE; THE TRAVELERS INSURANCE CO.; and SECOND INJURY FUND

APPELLEES

CA 01-20

NOVEMBER 7, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NOS. E602825, E507812, E318421, E307214]

AFFIRMED

This appeal arises from an Arkansas Workers' Compensation Commission decision in which the Commission determined that the appellant, James Brown, was not entitled to additional medical benefits from the appellees, General Medical Corporation, Liberty Mutual Insurance Company, and The Travelers Insurance Company. Appellant argues on appeal that the Commission erred in making the following findings: 1) that appellant's safety violation claim was barred by res judicata; 2) that appellant was not entitled to costs incurred from his treatment at Safe Harbor Behavioral Medical Clinic; 3) that appellant was not entitled to an additional impairment rating; 4) that appellant was not entitled to vocational rehabilitation; and 5) that appellant was not entitled to additional medical benefits. We find no error, and affirm.

Appellant suffered several injuries over the past years during his employment with

General Medical Corporation. The first injury occurred in 1993 while operating a fork lift. From this incident, appellant suffered an injury to his cervical spine and low back. This injury required surgery. Mr. Brown was assessed with a permanent impairment rating of 10%. A second injury occurred in November 1993. Appellant was injured when a wooden pallet broke through when he stepped on it. A third injury occurred in April 1994. Appellant was struck in the head by an overhead door. At this time, a second surgical procedure was performed. In January 1995, appellant was hospitalized, and a third surgery was performed. This surgery and hospitalization was the subject of a hearing held on October 27, 1995, an ALJ opinion of September 10, 1996, and an opinion by the Commission on June 10, 1997.

On February 15, 1996, appellant suffered a fourth injury. Appellant requested additional medical benefits relating to this injury and an opinion was filed by an ALJ on February 15, 2000, addressing appellant's claims. At the hearing, it was stipulated that appellee, Liberty Mutual Insurance Company, was the carrier from 1993 to 1994, and appellee, The Travelers Insurance Company, was the carrier from 1995 to 1996. Specifically, the ALJ found that appellant's 1996 injury was a permanent aggravation of a preexisting condition and appellees were liable for expenses associated with pain management. The ALJ also found that the 1993 safety violation issue was barred by res judicata, that appellant was not entitled to benefits from his treatment at Safe Harbor Behavioral Clinic, that appellant was not entitled to vocational disability, and appellant was not entitled to any additional permanent impairment rating. The Commission affirmed andadopted the ALJ's findings. It is from this opinion of the Commission that appellant brings this appeal.

When reviewing a decision of the Arkansas Workers' Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Crossett Sch. Dist. v. Fulton, 65 Ark. App. 63, 984 S.W.2d 833 (1999). The issue is not whether this Court might have reached a different result from the Commission. Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). In making our review, we recognize that it is the function of the Commission to determine credibility of witnesses and the weight to be given their testimony. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).

Appellant's first argument is that the Commission erred in finding that the 1993 safety violation issue was barred by res judicata. Appellant contends that his 1993 injury was caused by a defective lift-truck in violation of Ark. Code Ann. §11-2-117 (Repl. 1996). The Commission barred the issue from consideration for the reason that appellant could have raised the issue at the 1995 hearing. Under the doctrine of res judicata, a subsequent suit is barred when (1) the first suit resulted in judgment on the merits; (2) the first suit was basedupon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988).

In this case, there was a full hearing held in 1995 regarding appellant's third surgery, and an opinion was rendered by an ALJ and the Commission. There is no doubt that there was proper jurisdiction, and that the case was fully contested in good faith. Appellant could have brought the 1993 safety violation issue at that time. The 1995 hearing involved the same parties as the present case. Thus, we hold that the Commission did not err in finding that the 1993 safety violation issue was barred by res judicata.

Second, appellant argues that the Commission erred in denying his claim for expenses for treatment at the Safe Harbor Behavioral Clinic by Dr. William Collie. Appellant argues that his treatment has been wrongly classified as psychological treatment. However, as the appellees point out, the notes from Safe Harbor reflect that appellant would go to sessions and talk about his thoughts, feelings, and actions. Arkansas Code Annotated § 11-9-113 (Repl. 1996) provides that:

(a)(1) A mental injury or illness is not compensable unless it is caused by physical injury to the employee's body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.

(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most currentissue of the Diagnostic and Statistical Manual of Mental Disorders.

The ALJ found and the Commission affirmed and adopted the finding that the reports do not indicate a causal connection between appellant's injury and his sessions at Safe Harbor. We hold that this finding is supported by substantial evidence.

Third, appellant argues that he is entitled to an additional 15% impairment rating as assessed by Dr. Thomas Shinder. Dr. Shinder assessed a 35% impairment rating to appellant. Appellee has already paid a total of 20% impairment rating. Arkansas Code Annotated § 11-9-102(5)(F)(ii) (Repl. 1996) states in relevant part that "Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment." By letter dated June 21, 1996, Dr. Shinder states that "a confluence of MRI scan and median nerve somatosensory evoked potentials support the evidence of a post-traumatic myelopathy which has led to chronic central pain syndrome." Dr. Shinder states in that letter that the 35% impairment rating is based on those objective findings along with subjective complaints of pain. The ALJ found and the Commission affirmed that there is no indication in Dr. Shinder's report to satisfy the elements under Act 796 for appellant to be entitled to an additional 15% impairment rating. We agree. There was no document found by the ALJ where Dr. Shinder ever explained the basis of his rating, commented on its cause, or clarified whether the 35% impairment rating was inclusive of the preexisting 20% impairment rating. Dr. Shinder's failure to clarify leaves it unclear whether his diagnosis is based on objective findings of trauma after the 1996 injury, or if it reflects the cumulative effect of the multiple injuries and surgeries. Further, Dr. ReginaldRutherford opined that there was no objective evidence of a new injury when comparing the MRI test results before and after the last injury. Therefore, we hold that the Commission did not err in denying appellant's claim for any additional permanent impairment rating.

Fourth, appellant argues that the Commission erred in denying him vocational rehabilitation benefits. Arkansas Code Annotated § 11-9-505(b)(1) (Repl. 1996) provides:

(b)(1) In addition to benefits otherwise provided for by this chapter, an employee who is entitled to receive compensation benefits for permanent disability and who has not been offered an opportunity to return to work and/or reemployment assistance shall be paid reasonable expenses of travel and maintenance and other necessary costs of a program of vocational rehabilitation if the commission finds that the program is reasonable in relation to the disability sustained by the employee.

The Commission is required to exercise its discretion when approving or disapproving a rehabilitation program. Coosenberry v. McCroskey Sheet Metal, 6 Ark. App. 177, 639 S.W.2d 518 (1982).

Since leaving General Medical Company's employment appellant worked for Tipton and Hurst from September 1996 to December 1996 at $7 an hour. He worked at John Stone Supply Company until it went out of business. Appellant currently earns $10 an hour at Parkway Automotive. The ALJ found that appellant is now earning more money than when he left appellee's employment. Further, appellant previously had worked for Western Paper for ten years. He worked as a customer service manager for Western Paper, and also worked there as an inventory control manager. We hold that the Commission's decision to deny appellant vocational rehabilitation benefits is supported by substantial evidence.

Last, appellant asks this court to remand this matter to the Commission for the Commission to clarify the finding that the appellees remain responsible for all reasonable and necessary medical and attendant care and treatment. We agree with the appellees that this argument amounts to a request for a ruling regarding future benefits that appellant may be entitled to receive. We do not decide cases that are moot, or render advisory opinions, or answer academic questions. See K.S. v. State, 343 Ark. 59, 31 S.W.3d 849 (2000). Accordingly, we reject appellant's final argument.

Affirmed.

Robbins and Neal, JJ., agree.