Howard Harper v. Arkansas Rehabilitation Services and Public Employee Claims Division

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

HOWARD HARPER

APPELLANT

V.

ARKANSAS REHABILITATION

SERVICES and PUBLIC EMPLOYEE CLAIMS DIVISION

APPELLEES

CA 04-377

JANUARY 26, 2005

APPEAL FROM THE WORKERS'

COMPENSATION COMMISSION

[NO. E814766]

AFFIRMED

John B. Robbins, Judge

This workers' compensation case has a long procedural history. Appellant Howard Harper brought a claim against appellee Arkansas Rehabilitation Services, alleging that he sustained a compensable aggravation of his pre-existing fibromyalgia on September 16, 1998, when he fell off of a chair while retrieving a box of copy paper. Mr. Harper sought temporary total disability benefits and medical benefits. After a hearing held on June 28, 2000, the administrative law judge found that Mr. Harper sustained a compensable injury to his right hip, leg, and shoulder, and that he was entitled to medical expenses incurred for those injuries on September 16-17, 1998. However, the ALJ found, among other things, that Mr. Harper suffered no disability as a result of the fall, and that he was not entitled to any medical benefits beyond September 17, 1998.

Mr. Harper appealed from the ALJ's decision, and the Workers' Compensation Commission found that the ALJ relied on an erroneous standard for determining causation, blurred the issues of compensability and permanency, and resolved issues not presented for determination. Based on these findings, the Commission vacated the ALJ's opinion and remanded for additional findings of fact and conclusions of law.

On remand, the ALJ issued an opinion reciting that the Commission had remanded the case "with instructions which included limiting the scope of the opinion to be rendered herein to the issue of compensability."1 Relying on the opinion of Mr. Harper's family physician, Dr. Joe Lee Buford, the ALJ found that Mr. Harper proved by a preponderance of the evidence that his muscle spasms were causally related to his compensable injury of September 16, 1998, and that he had sustained a compensable aggravation of his pre-existing fibromyalgia condition. However, the ALJ's opinion failed to award any specific benefits for the compensable aggravation.

The appellee appealed the second ALJ opinion to the Commission, and the Commission affirmed and adopted that opinion. In doing so, the Commission stated, "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 opinion in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996)." The Commission also awarded a $250.00 attorney's fee.

The appellee failed to pay any compensation, and Mr. Harper subsequently asserted that he was entitled to a twenty-percent penalty pursuant to Ark. Code Ann. § 11-9-802(c) (Repl. 2002), which provides:

If any installment payable under the terms of an award is not paid within fifteen (15) days after it becomes due, there shall be added to such unpaid installment an amount equal to twenty percent (20%) thereof, which shall be paid at the same time as, but in addition to, the installment unless review of the compensation order making the award is had as provided in §§ 11-9-711 and 11-9-712.

Mr. Harper further asserted entitlement to medical benefits and permanent total disability benefits.

After a hearing held on December 11, 2002, the ALJ found that Mr. Harper's compensable aggravation was temporary in nature and that he had returned to his pre-injury condition as the time of the first hearing held on June 28, 2000. The ALJ awarded benefits for all reasonably necessary medical treatment through the date of the first hearing, but found that none of Mr. Harper's Valium prescriptions constituted reasonably necessary treatment. The ALJ denied Mr. Harper's claim for a twenty-percent penalty, noting that the appellee had recently voluntarily paid the $250.00 attorney fee along with a twenty-percent penalty on that amount, but that the appellee had not been specifically obligated to pay anything beyond that in the Commission's previous orders. The ALJ also denied Mr. Harper's claim for permanent total disability benefits. Mr. Harper appealed the ALJ's third opinion to the Commission, and the Commission affirmed and adopted the decision of the ALJ.

Mr. Harper now appeals from the most recent opinion of the Commission, arguing that it is contrary to applicable law, and conflicts with the Commission's prior award of benefits. Mr. Harper submits that despite being victorious on two prior occasions, the effect of the latest Commission ruling has limited him to no benefits beyond a $250.00 attorney's fee. Mr. Harper notes that in the second opinion by the Commission, the Commission ordered accrued benefits to be paid in a lump sum, and yet no benefits were paid. He contends that this entitles him to the twenty-percent statutory penalty. Mr. Harper further asserts that the most recent Commission decision that denies him benefits violates the law-of-the-case doctrine because it is in conflict with its prior opinion awarding benefits.

The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002). The doctrine provides that a decision of an appellate court establishes the law of the case for the trial court upon remand and for the appellate court itself upon subsequent review. Id. The purpose of the doctrine of law of the case is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003). The doctrine is applicable to administrative agencies. Rankin v. Dir., 82 Ark. App. 575, 120 S.W.3d 169 (2003).

We hold that the Commission did not violate the law-of-the-case doctrine. Nor did it err in failing to impose a twenty-percent penalty. In the second ALJ opinion, which was affirmed and adopted by the Commission, the ALJ indicated that it was ruling only on the issue of compensability. The ALJ failed to award any benefits, and while the Commission ordered payment of "all accrued benefits," the appellee was not apprised of its liability for any specific benefits. Mr. Harper acknowledges that the ALJ inexplicably never made findings regarding Mr. Harper's entitlement to benefits. Neither party appealed from the Commission's second opinion or requested additional findings or clarification from the Commission. Thus, the issue of Mr. Harper's entitlement to benefits remained open.

After the second hearing, the ALJ and Commission determined that Mr. Harper failed to prove that his compensable aggravation resulted in any disability, and that while he was entitled to reasonably necessary medical benefits, his Valium prescriptions were excepted from such benefits. These issues had not yet been decided in the prior decisions of the Commission, and thus they were properly considered and resolved. The Commission's failure to award temporary total disability benefits was supported by the fact that, shortly after the aggravation, Mr. Harper received unemployment benefits and held himself out for employment. Moreover, the Commission committed no error in failing to award a penalty because, as of the time of its final opinion, the appellee had yet to be ordered to pay any installments. Even had the appellee been ordered to pay medical benefits, its failure to pay could not result in a penalty because the penalty provision does not apply to medical bills. See Johnson v. Amer. Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992).

Mr. Harper also argues that there was no substantial evidence to support the Commission's finding that he is not entitled to permanent total disability benefits. In Mr. Harper's testimony, he stated that he has not worked since the September 16, 1998, accident. Dr. Buford testified that Mr. Harper was experiencing spasms prior to the accident, and that he subsequently had significantly more severe spasms. Dr. Buford stated that he administered Valium on four occasions over the 23-month period before the aggravation. However, after the fall Mr. Harper's spasms were so frequent and severe that he was prescribed Valium that he could inject manually, and he used over 150 Valium injections between September 16, 1998, and January 25, 2000. In a letter dated May 2, 2002, Dr. Buford wrote:

Mr. Howard Harper continues to have persisting disability related to his fibromyalgia. He is certainly unable to engage in any type of gainful employment and continues in approximately the same status as previously noted.

Mr. Harper maintains that there is no evidence to support the Commission's finding that his aggravation had resolved by the time of the June 28, 2000, hearing, and that the Commission erred in failing to find that he is permanently and totally disabled.

On appeal, this court views the evidence in the light most favorable to the Commission's decision and affirm when that decision is supported by substantial evidence. Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d 544 (2001). Where the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of review requires us to affirm if the Commission's decision displays a substantial basis for the denial of relief. Id. A substantial basis exists if fair-minded persons could reach the same conclusion when considering the same facts. Id. The issue is not whether the appellate court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission's conclusion, then we must affirm. Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999). The Commission is not required to believe the testimony of any witness, and it may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Green Bay Packing v. Bartlett, supra.

We hold that the Commission's opinion displays a substantial basis for denying any relief beyond that which was granted. The Commission relied on the opinion of Dr. J.K. Smeltz, who conducted an examination of Mr. Harper on May 10, 2002. Dr. Smeltz could find nothing physically wrong with Mr. Harper and gave the opinion that, even if Mr. Harper has fibromyalgia, Valium is not the accepted prescription. Dr. Smeltz further asserted that there was no impairment rating associated with the fall, and there was no other evidence of any impairment rating. A permanent physical impairment must be established before the Commission can consider a claim for permanent disability benefits. Wren v. Sanders Plumbing Supply, 83 Ark. App. 111, 117 S.W.3d 657 (2003). Such impairment must be supported by objective medical findings, see Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 2002), and must conform to the AMA Guides to the Evaluation of Physical Impairment, 4th edition, see Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001). Because no permanent impairment was established, the Commission committed no error in denying Mr. Harper's claim for permanent total disability benefits.

Affirmed.

Gladwin and Neal, JJ., agree.

1 This statement was incorrect, as the Commission did not give this limiting instruction in its opinion remanding the case.