Henry J. Burns v. West Tree Service et al.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA02-344

November 20, 2002

HENRY J. BURNS AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [E307640]

V.

WEST TREE SERVICE; U.S.F.&G

APPELLEES AFFIRMED

This case arises on appeal from the Arkansas Workers' Compensation Commission. Appellant, Henry J. Burns, argues (1) that the Commission erred in applying res judicata to his compensation claim, and (2) that it erred in not finding a substantial change in condition. We affirm.

However, we first address an ever more recurring phenomenon concerning noncompliance with our appellate procedural rules. Appellant failed to abstract his notice of appeal or include it in the addendum, despite the plain requirements of Rule 4-2(a)(8) of the Arkansas Supreme Court and Court of Appeals (2002). The record shows that appellant filed the notice within the time period prescribed by Arkansas Rule of Appellate Procedure 4(a) (2002). We caution and remind counsel that although the rules no longer authorize usto dismiss a case for such noncompliance, we still have the option to order rebriefing. Rules of the Arkansas Supreme Court and Court of Appeals 4-2(b), (b)(3) (2002). We choose not to do so today, but in light of the recurring incidents of noncompliance we issue this reminder so that counsel can exercise greater diligence in the future.

On April 2, 1992, appellant suffered a low back injury while working for appellee West Tree Service. West Tree Service had employed him for approximately twenty years. He was forty years of age at the time of the injury, and he possessed an eighth-grade education. At the time of the injury, appellant worked as a foreman, but also engaged in physical work. Appellant received temporary total disability benefits and permanent partial disability benefits. He never returned to work. An MRI, conducted after the injury, reflected bulging discs, but no herniation. The treating physician, Dr. John Wilson, stated that the MRI showed degenerative disc disease. Appellant underwent steroid injections, among other treatments, as well as a work-hardening program.

On March 31, 1995, an administrative law judge (ALJ) held a hearing to determine appellant's entitlement to additional temporary total disability benefits. During that hearing, appellant testified that he felt pain on a daily basis, from his low back radiating into his legs. According to that testimony, appellant stayed home and spent a substantial part of his days lying on a couch. Appellant also stated his opinion that the pain was getting worse. He slept between three and five hours a night and took medication. He claimed that he could not stand or sit for long periods of time.

Additional testimony at that hearing established that on October 22, 1992, Dr. Jim J.Moore, a neurosurgeon, expressed his opinion that appellant could return to the work he was doing at the time of the injury. Dr. Moore did not find muscle spasms or disc herniation, and consequently did not recommend surgery. In a report dated November 16, 1992, Dr. John Wilson agreed with Dr. Moore, and assessed appellant as having a ten percent whole body physical impairment rating. Further testimony stated that Dr. Wilson advised appellant on November 24, 1992, that he had reached the end of his healing period and that Dr. Wilson would like to see appellant at least attempt to return to work.

On December 22, 1995, the ALJ held another hearing to determine appellant's entitlement to wage loss disability. During that hearing, appellant alleged that he was permanently and totally disabled. Based on that hearing, the ALJ stated in a written opinion dated January 26, 1996, that appellant sustained a twenty percent wage loss disability in addition to the ten percent physical impairment accepted and paid by appellees, rather than being permanently and totally disabled.

Approximately eight years after his injury, appellant alleged again that he is entitled to permanent and total disability. During the most recent hearing in this case, the ALJ received additional testimony. In an opinion filed October 1, 2001, the ALJ acknowledged that appellant obtained from the Commission a one-time visit to Dr. Wilson as reasonable and necessary medical treatment in 1998. Appellant returned to Dr. Wilson on May 15, 2000. Dr. Wilson's report stated that appellant continued to complain about severe back and leg pain. Dr. Wilson found that appellant is unable to work in employment. However, Dr. Wilson's report also indicated that the changes in appellant's lumbar spine were degenerativein nature. During a deposition on August 29, 2000, appellant stated that his worsened pain was the primary change in his medical condition.

The hearing established further that appellant visited Dr. Thomas M. Ward at Little Rock Physical Medicine and Rehabilitation Associates in September 2000, who conducted an analysis of appellant's medical history. The analysis reflected the above stated history as well as the fact that appellant started wearing a TENS unit in 1994. Dr. Ward also reviewed statements by appellant's physical therapist. The therapist recorded an "overall impression . . . during the functional capacity evaluation [finding] the presence of pain behaviors and efforts of calling attention to his pain." Dr. Ward also found that appellant underwent an additional MRI in August 1995, again showing degenerative changes, but no disc herniation or spinal stenosis. Finally, Dr. Ward stated in his October 2000 report that appellant's "right lower extremity specifically failed to reveal any subjective and comparative difference in sensory testing now, versus the way it felt prior to his back injury in 1992."

The ALJ concluded from this that there was no substantial change in appellant's response and management for his right lower extremity during the eight years subsequent to his 1992 injury. The ALJ also stated that there was not much collaborating evidence that his right lower extremity was immediately and eminently involved in complaints of pain from the onset of his low back injury of 1992 up through his current examination. Therefore, the ALJ found that res judicata barred relitigation of appellant's claim of permanent and total disability. In an opinion filed February 15, 2002, the Commissionaffirmed and adopted the ALJ's determination. This appeal followed.

Sufficiency of the Evidence to Show that No Substantial Change Existed and Res Judicata

Appellant contends that the Commission erred in finding that he did not prove a substantial change in his medical condition. He essentially argues that there existed a substantial change, arising from his compensable work injury of 1992, that would have constituted a litigable issue not barred by res judicata. We review Workers' Compensation Commission decisions by asking whether there is substantial evidence to support the decision of the Commission. Rice v. Georgia-Pacific Corp., 72 Ark. App. 149, 35 S.W.3d 328 (2000). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). We review the evidence and all reasonable inferences in the light most favorable to the Commission's findings and affirm the Commission if its findings are supported by substantial evidence. Geo Speciality Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding-rather, we should affirm if reasonable minds could reach the Commission's conclusion. Sharp County Sheriff's Dep't v. Ozark Acres Improvement Dist., 75 Ark. App. 250, 57 S.W.3d 764 (2001). Because his injury occurred in April of 1992, the old Arkansas Workers' Compensation Act applies. See generally Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002) (discussing liberal and strict construction before and after Act 796 of 1993).

Res judicata applies to decisions of the Workers' Compensation Commission andforbids the reopening of matters once judicially determined by competent authority. Lunsford v. Rich Mtn. Elec. Coop., 38 Ark. App. 188, 832 S.W.2d 291 (1992). In any event, the claimant has the burden of proving a change in physical condition. Ark. Code Ann. § 11-9-713(a) (Repl. 2002). When a worker's primary injury arose out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to the claimant's own negligence or misconduct. International Paper Co. v. Tuberville, 302 Ark. 22, 786 S.W.2d 830 (1990), affirming Tuberville v. International Paper Co., 18 Ark. App. 210, 711 S.W.2d 840 (1986). The supreme court held that where the evidence clearly showed that the claimant's increase in impairment and need for surgery was the combination of his compensable injury and the aging process, the impairment and need for surgery were compensable consequences. Id.

In the much-litigated Tuberville case, the claimant received an anatomical impairment rating of twenty-five percent to the body as a whole and was awarded permanent partial disability benefits of fifty-five percent due to a compensable back injury. International Paper Co. v. Tuberville, supra. Afterwards, Tuberville's physician increased his impairment rating to forty percent to the body as a whole and consequently, Tuberville requested an increase in his disability award. Id. The Commission found his claim barred by res judicata. Id. The court of appeals reversed and remanded, finding that the Commission erred in relying on the appellant's original contention regarding the degree of his initial disability rather than the degree of permanent partial disability actually awarded by the Commission. Tuberville v. International Paper Co., supra.

In the case at bar, we hold that res judicata bars reconsideration of the original award of benefits and disability. Unlike the Commission in the Tuberville cases, the present Commission did not bar appellant's claim for an increase in disability benefits because he had previously made such a claim for benefits. Rather, the Commission found that appellant's claim was barred because he made the claim for benefits based upon the exact same set of circumstances upon which he relied in his previous claim for benefits. His previous claim was litigated and appellant received an award of twenty percent wage loss in addition to his ten percent impairment rating. In the present matter, appellant failed to present facts different from those in his previously litigated claim. Appellant did not show that his compensable 1992 injury had any impact on his aging, unlike the claimant in Tuberville. The Commission reviewed the entire record as well as appellant's contentions. Appellant's degenerative changes were already noted in 1992, and specifically not found to be connected with his injury. Appellant did not offer any evidence that his physical condition changed, apart from degenerative changes. Moreover, the record does not show any new degenerative changes. Even regarding his pain, appellant did not offer any new evidence other than what he had offered previously, namely that he feels pain in his lower back and legs, and that he has trouble sleeping, standing, or walking. Therefore, we hold that the Commission had sufficient evidence to find that appellant's condition had not changed, and that, therefore, res judicata barred him from relitigating his previous claim of permanent and total disability.

Affirmed.

Pittman and Neal, JJ., agree.