Richard Angell v. Cooper Tire and Rubber Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

RICHARD ANGELL

APPELLANT

V.

COOPER TIRE AND RUBBER COMPANY

APPELLEE

CA 04-359

SEPTEMBER 28, 2005

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[NO. E209797]

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Terry Crabtree, Judge

This is a workers' compensation case. An administrative law judge filed an opinion on October 17, 2002, finding that the appellee, Cooper Tire & Rubber Company, was in contempt of the Workers' Compensation Commission. In addition, the ALJ imposed a $10,000 fine on appellee. However, the Commission reversed the ALJ, found that Richard Angell, the appellant, failed to prove that appellee was in contempt of the Commission, and reversed the imposition of the fine. On appeal, appellant presents two issues for our review: (1) whether "the Commission erred in reviewing past hearings to determine that appellee was not in contempt as they were res judicata"; and (2) whether substantial evidence supports the Commission's decision. We affirm in part and reverse and remand in part.

Appellant suffered an admittedly compensable injury on June 8, 1992. Appellee paid temporary total disability compensation through May 31, 1993. The parties stipulated that appellant had reached the end of his healing period for a left leg injury and that appellee paid a 23% impairment to the left lower extremity.

In an opinion filed February 9, 1996, an administrative law judge found that appellant was entitled to an independent medical evaluation by Dr. John L. Wilson. Dr. Wilson recommended, "If [appellant] is able to show the trend of losing weight, it would be appropriate to do an arthroscopy of his right knee and address the intra-articular problem."

On October 29, 1997, another ALJ filed an opinion finding that appellant's physical problems involving his right leg and back were causally related to his June 8, 1992, compensable injury. The ALJ found in pertinent part:

8. [Appellee is] responsible for continued reasonably necessary medical and related treatment provided by Dr. William S. Bundrick as well as any legitimate referrals made by Dr. Bundrick.

9. Dr. Bundrick is recognized as [appellant's] primary medical provider . . .

11. The nature and extent of [appellant's] disability, as well as [appellant's] entitlement to further indemnity benefits requires additional development of the medical evidence, and, is by necessity specifically reserved.

The ALJ further found:

[T]hat [appellant] has shown, by a preponderance of the credible evidence, that there is a causal connection between appellant's leg and back complaints and the June 8, 1992, admitted injury. Accordingly, it is hereby determined that [appellee], should be held responsible for all past medical and related expenses, together with continued reasonable and necessary treatment as outlined by Dr. Wilson in his May 9, 1996, report. It must be noted that Dr. Wilson's final diagnosis of the back was a lumbosacral strain which has long since resolved and no recommendations for treatment were made as related to the back. It must further be noted that Dr. Wilson's recommendations concerning treatment for the right knee were for continued conservative treatment and to avoid surgery until and unless [appellant] overcomes his weight problem. . .

I find that the original and primary treating physician, Dr. William S. Bundrick, is authorized to provide the additional treatment recommended by Dr. Wilson. Accordingly, [appellee] would be responsible for outstanding medical and related expenses from all authorized treating physicians, including, but not limited to the treatment by Dr. Bundrick, as well as continued reasonably necessary treatment provided by Dr. Bundrick and/or through his valid referrals.

In a related matter, I specifically find that any treatment provided by Dr. Roshan Sharma is unauthorized, outside the chain of valid referrals, unreasonable, and unnecessary . . . Rather than conduct an exhaustive analysis of Dr. Sharma's testimony, suffice it to say that his medical opinion lacks credibility because it is inconsistent with the medical opinion as a whole, and, further, reflect [sic] genuine animosity against the employer.

The ALJ directed appellee to "pay outstanding medical and related expenses consistent with the foregoing Findings and Conclusions, and [appellee] remains responsible for continued reasonably necessary medical and related treatment." Neither party appealed the ALJ's October 29, 1997, opinion.

Later, on May 19, 2000, after a hearing, another ALJ filed an opinion finding that appellee had willfully and intentionally failed to pay for treatment provided by Dr. Bundrick subsequent to February 10, 1998, so that "a thirty-six percent (36%) penalty is payable to [appellant] on said incurred unpaid bills pursuant to Ark. Code Ann. §11-9-802(d) and (e)." The ALJ found that appellee had refused to comply with the October 29, 1997, order and that appellee was in contempt of the Commission. As a result, the ALJ ordered appellee to pay a $10,000 fine.

On October 13, 2000, the Commission affirmed, as modified, the ALJ's opinion. The Commission affirmed the ALJ's finding that the statute of limitations did not bar additional compensation. The Commission also found that appellee had willfully and intentionally failed to pay for medical treatment received by Dr. Bundrick. However, the Commission suspended and held in abeyance payment of the $10,000 fine imposed by the ALJ contingent upon appellee's compliance with past and prospective Commission orders in this matter.

On October 24, 2001, this court issued an opinion in Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001), wherein we affirmed the Commission's decision. We held that the statute of limitations was tolled as a result of appellee's refusal to provide treatment by Dr. Cavanaugh after appellant was referred to him, and treatments by Dr. Mitchell Young from May 5, 1999, through December 25, 1999. We also noted appellee's argument that the $10,000 fine was excessive and violated constitutional due process. However, we did not reach the merits of that argument as the Commission suspended and held in abeyance the fine.

According to a pre-hearing order filed with the Commission on June 12, 2002, the ALJ scheduled another hearing on the following issues:

(1) Contempt pursuant to Ark. Code Ann. §11-9-706;

(2) Enforcement of prior Commission orders and rulings;

(3) Penalty pursuant to Ark. Code Ann. §11-9-802(e); and

(4) Attorney's fees.

Another hearing was held before the ALJ on July 19, 2002. Appellee called appellant as a witness. Appellant testified that he could not recall being referred by Dr. Sharma to Dr. Otero, a psychologist. Appellant did recall Dr. Sharma referring him to Wadley Regional Medical Center for various diagnostic testing. Next, Ricky Norton, appellee's Manager of Benefits and Security, testified about the status of the medical bills appellant had submitted to it and which medical bills appellee had paid. Ultimately, the ALJ filed an opinion on October 17, 2002, finding among other things:

[Appellee] has failed to comply with the prior rulings of the Arkansas Workers' Compensation Commission and the Arkansas Court of Appeals, in that [appellee] has failed to pay attorney's fees and medical bills, as directed in the October 29, 1997, final order of the Administrative Law Judge; [appellee] has failed to pay medical bills and attorney's fees and penalty on all the unpaid incurred bills per the May 19, 2000, Opinion and Order of the Administrative Law Judge, the October 13, 2000, opinion of the Full Commission and the October 24, 2001, decision of the Arkansas Court of Appeals.

The ALJ determined that appellee "having been found in contempt of the October 13, 2000, prior ruling of the Arkansas Workers' Compensation Commission, pursuant to Ark.Code Ann. §11-9-706(b), is herein ordered to pay a fine in the amount of $10,000 to the Clerk of the Arkansas Workers' Compensation Commission, for deposit into the Commission's administrative account." Appellee appealed to the Commission, and the Commission denied appellant's claim for contempt and reversed the ALJ's imposition of the fine.

For appellant's first point on appeal, he claims that the Commission erred in reviewing past hearings to determine that appellee was not in contempt as they were res judicata. Res judicata applies where there has been a final adjudication on the merits of the issue by a court of competent jurisdiction on all matters litigated and those matters necessarily within the issue that might have been litigated. Castleberry v. Elite Lamp Company, 69 Ark. App. 359, 13 S.W.3d 211 (2000). The doctrine of res judicata is applicable to decisions by the Commission. Id. The doctrine of res judicata applies only to final orders or adjudications. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). Here, appellant seems to argue that, in deciding whether appellee was in contempt, the Commission relitigated the matter of the payment of outstanding medical bills as the October 29, 1997, and May 19, 2000, decisions from administrative law judges were final orders. However, the Commission did not relitigate these issues. Instead, the Commission simply reviewed the previous orders to determine whether appellee's current payments were in compliance with those orders. As such, we hold that appellant's first argument on appeal lacks merit.

For appellant's second point on appeal, he argues that substantial evidence does not support the Commission's decision. The substantial evidence standard of review requires us to affirm the Commission if its opinion displays a substantial basis for denial of the relief sought by the worker. Stiger v. State Line Tire Serv., 72 Ark. App. 250, 35 S.W.3d 335 (2000). In determining the sufficiency of the evidence to sustain the findings of the Commission, we review the evidence in the light most favorable to the Commission's findings and affirm if they are supported by substantial evidence. Id. We will not reverse the Commission's decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Stiger, supra. In making our review, we recognize that it is the Commission's function to determine the credibility of witnesses and the weight to be given their testimony. Searcy Indus. Laundry, supra. Moreover, the Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id.

Arkansas Code Annotated section11-9-706(b) provides:

If any person or party in proceedings before the Commission disobeys or resists any lawful order or process, . . . or refuses to comply with any final order of an Administrative Law Judge or the Commission, or willfully refuses to pay an uncontroverted medical or related expense within forty-five (45) days after the respondent has received the statement, then the person or party, at the discretion of the Administrative Law Judge or the Commission, may be found to be in contempt of the Commission and may be subject to a fine not to exceed ten thousand dollars ($10,000).

Appellant claimed that appellee should be held in contempt for failing to pay bills from Dr. Otero and Wadley Regional Medical Center. Appellant maintains that these bills were submitted into the record at the time of the original 1997 hearing before the Administrative Law Judge. Appellee has not paid these bills. Appellee contends that it was not ordered to pay for the bills from Dr. Otero and Wadley Regional, so it cannot be held in contempt for not paying these bills. A person may be held in contempt for violating a court order if that order is in definite terms as to the duties imposed on the person, and the command must be expressed rather than implied. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). We agree with the Commission that a reasonable interpretation of the ALJ's October 1997 opinion is that the bills from Dr. Otero and Wadley Regional were not reasonably necessary. The record shows that those bills were accrued as a result of referrals from Dr. Roshan Sharma. The ALJ expressly found that Dr. Sharma's treatment and referrals were not reasonably necessary.

Appellant also argued that since the Otero and Wadley Regional medical bills were submitted of record in 1997, then appellee is liable for these bills and should be held in contempt for failing to pay. Again, the general rule is that before a person can be held in contempt for violating a court order, the order must be in definite terms as to the duties thereby imposed, and the command must be express. Taylor v. State, 76 Ark. App. 279, 64 S.W.3d 278 (2001); Warren, supra. Here, there was no express command for appellee to pay Dr. Otero and Wadley Regional. In fact, the record shows just the opposite. Since Dr. Otero and Wadley Regional were referrals from Dr. Sharma, who the Commission expressly determined was an unauthorized physician, appellee was under an implicit directive not to pay these bills. As the Commission determined that appellee was not responsible for the medical bills in question, the Commission reversed the ALJ's finding that appellee was in contempt.

Clearly, the Commission expressly ordered appellee to pay for medical treatment provided by Dr. Bundrick and his referrals. Appellee was slow to comply with this order, but ultimately the Commission found that appellee was in compliance with its orders and that appellee continued to provide reasonably necessary medical treatment in connection withappellant's 1992 injury. Essentially, the ALJ held appellee in contempt for failing to immediately and in full provide blanket payment for any and all medical statements submitted to it by appellant. Appellee noted that many of the documents provided by appellant contain no date of service, type of service, or even an identity of the provider. Appellee's delay of payment while conducting a reasonable attempt to investigate the extent of appellant's disability, does not necessarily constitute controversion, much less contempt. See Walter v. Southwestern Bell, Tel. Co., 17 Ark. App. 43, 702 S.W.2d 822 (1986).

Appellee contends that it has not acted in bad faith, and that it has paid everything the Commission ordered it to pay. Appellee has not paid for items such as a bill for an "open air MRI" with no accompanying documentation showing what the procedure was for; the record even shows that the medical provider subsequently opted not to charge payment for this service. The Commission could not find any contemptuous behavior on appellee's part. At the hearing, even appellant was unsure which medical bills had allegedly not been paid. Randy Norton, on the other hand, credibly testified that appellee paid everything it knew had been ordered or referred by Dr. Bundrick, and which bills had actually been submitted by appellant.

As a result, the Commission found that appellant failed to prove that appellee was in contempt of the Commission. Accordingly, the Commission reversed the ALJ's finding of contempt and the imposition of the $10,000 fine. Based upon our review, we find that substantial evidence supports the Commission's decision that appellee was not in contempt for failure to pay medical bills. However, the Commission's decision did not address whether appellee was in contempt for failure to pay the attorney's fees or penalties due. As the Commission made no finding in that regard, we must reverse and remand for the Commission to do so.

Affirmed in part; reversed and remanded in part.

Robbins and Griffen, JJ., agree.