Edward L. Warren v. Alexander Youth Services Center and Public Employees Claims Division

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

EDWARD L. WARREN

APPELLANT

V.

ALEXANDER YOUTH SERVICES

CENTER and PUBLIC EMPLOYEES

CLAIMS DIVISION APPELLEES

CA 05-652

February 22, 2006

APPEAL FROM THE ARKANSAS

WORKERS' COMPENSATION

COMMISSION [D601189, D614780]]

REVERSED AND REMANDED

David M. Glover, Judge

Appellant, Edward Warren, was employed by appellee, Alexander Youth Services Center, in 1985 and 1986 when he sustained two compensable back injuries. In an ALJ opinion dated March 30, 1995, appellant was found to have sustained an overall permanent-partial disability of sixty percent to the body as a whole based upon anatomical impairments totaling twenty percent to the body as a whole and additional wage-loss disability.1 The decision was not appealed to the Commission. Almost ten years later, on June 21, 2004, another hearing was held during which appellant testified that his condition had worsened and that he was entitled to additional benefits. The ALJ filed his opinion on July 20, 2004, denying appellant's claim for additional permanent-disability benefits. On appeal, the Commission affirmed and adopted the ALJ's decision. We now reverse and remand for the Commission to reconsider its decision because it made errors of law.

Appellant acknowledged at the outset of the June 21, 2004 hearing that he was supposed to focus on what had happened to him since the December 1994 hearing. He then testified that he was having the same types of physical problems now that he was having at the time of the prior hearing, but that those problems had gotten worse with age. He said that his symptoms in 1995 included pain in his back, legs, and feet, and that he was experiencing headaches that affected his eyes. He explained that the level of pain that he experiences now is much worse and more severe than it was in 1995. He stated that he now hurts in his groin and his hips and that the pain in his legs and feet is getting worse. He testified that "although I am complaining of some of the same problems, it is more difficult for me to get relief from those problems than it was in 1995." He said that "it doesn't take much activity to set off a lot of hurting." He stated that he never has pain-free days; that he takes medications for the pain; and that although Dr. Beverly Beadle told him to exercise, he doesn't exercise because it makes his condition worse. He said that he experiences headaches daily. He stated that Dr. Beadle is his primary physician for physical problems, but that he has seen different doctors on referral from her. He testified that he has also seen "a couple of psychiatrists, including Dr. Steve Buchanan." Appellant acknowledged that he suffers from depression "because of the effects of my injuries on my lifestyle and as a result of the way I was treated by the State after I suffered these injuries." He said that he is not able to do things around the house, that he sleeps sporadically, that he does not deal well with stress, that he lacks patience, that he is weaker now than he was at the time of the 1994 hearing, and that he has not worked since 1994.

On cross-examination, appellant acknowledged that "[a]ll of my doctors have recommended exercise." He stated, however, that he tried to follow the recommended exercise regimens, "but they made things worse."

Appellant's wife, Juanita Warren, testified that she and appellant have been married for 38 years; that she is familiar with the injuries he sustained; that he has suffered from problems since the 1994 hearing that are different from the problems he suffered before that time; that he has dizziness, pain, his feet hurt, and he doesn't rest well at night; and that his problems have been more severe since the 1994 hearing. She said that his level of activities has changed since the 1994 hearing. She explained that he previously tried to do little things, but that he doesn't do anything now. She testified that he cannot help with chores around the house; that he does not do much driving; and that he gets angry frequently. She said that on bad days, he is grouchy and mean. She also explained that when he is in pain, he has problems concentrating and keeping his mind on conversations. She said that his depression has gotten worse. She testified that appellant takes all seven of the following medications daily: Buspar, Serzone, Lexapro, Remeron, Ultram, Neurontin, and Aciphex, and that all of his doctors are aware of the medications that he takes.

Appellant raises four points in this appeal: 1) that the finding that his claim for permanent and total disability benefits was barred by res judicata is not supported by substantial evidence; 2) that he proved by a preponderance of the evidence that he is permanently and totally disabled as a result of his admittedly compensable injuries; 3) that the finding that he failed to prove there had been a change in his physical or mental condition since the prior opinion and award filed March 30, 1995, is not supported by substantial evidence; and 4) that the finding that "a modification of the prior award is not warranted pursuant to Arkansas Code Annotated § 11-9-713" is contrary to the law in effect at the time of his compensable injuries. We agree that the Commission erred in barring appellant's claim based upon the doctrine of res judicata, and we also agree that the Commission erred in its application of Arkansas Code Annotated section 11-9-713(e) to appellant's claim, making it necessary to reverse and remand this case for a reconsideration of appellant's claim applying the correct law.

Res Judicata

The purpose of the res judicata doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. O'Dell v. Rickett, ____ Ark. App. ____, ____ S.W.3d ____ (Sept. 28, 2005); Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003). Relitigation is barred by res judicata when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action that was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. Id. (Emphasis added.) The test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit and might have been litigated therein. Id. Although the Commission is not a court, its awards are in the nature of judgments, and the doctrine of res judicata applies to Commission decisions. Gwin v. R.D. Hall Tank Co., 10 Ark. App. 12, 660 S.W.2d 947 (1983).

While it is true that the doctrine of res judicata applies in workers' compensation cases, the Commission's application of the doctrine to this case - - where the appellant's position was that his condition had changed since the last opinion - - was misplaced. See O'Hara v. J. Christy Constr. Co., ____ Ark. App. ____, ____ S.W.3d ____ (Feb. 8, 2006).

Section 11-9-713

In his opinion, the ALJ stated his finding that the claim was barred by res judicata. He went on to state, however, that even if the claim were not barred, "it is clear that the claimant is attempting to obtain a modification of a prior Award." He then quoted Arkansas Code Annotated section 11-9-713 in its entirety, and concluded, in an apparent contradiction to his finding that appellant had failed to prove a change in his physical or mental condition since March 30, 1995, that "[t]he record reflects that the only change in the claimant's overall condition is the effect of aging on his prior condition which cannot be considered in determining permanent disability." Appellant contends that the Commission erred in relying upon Arkansas Code Annotated section 11-9-713(e) because it was not in effect at the time of his injuries and therefore does not apply to his case. We agree.

Section 11-9-713 (Repl. 2002) provides in pertinent part:

11-9-713. Modification of awards.

(a)(1) Except where a joint petition settlement has been approved, the Workers' Compensation Commission may review any compensation order, award, or decision.

(2) This may be done at any time within six (6) months of termination of the compensation period fixed in the original compensation order or award, upon the commission's own motion or upon the application of any party in interest, on the ground of a change in physical condition or upon proof of erroneous wage rate.

. . . .

(e) Aging and the effects of aging on a compensable injury are not to be considered in determining whether there has been a change in physical condition. Nor shall aging or the effect of aging on a compensable injury be considered in determining permanent disability pursuant to this section or any other section in this chapter. The purpose and intent of this section is to annul any and all case law inconsistent herewith, including International Paper Co. v. Tuberville, 302 Ark. 22, 786 S.W.2d 830 (1990).

(Emphasis added.)

As asserted by appellant, subsection (e) was added with the 1993 act. Thus, it was not in effect at the time of his 1985 and 1986 injuries. Appellant's claim should be considered under the law that was in effect at the time of his 1985 and 1986 injuries. See Taylor v. Producers Rice Mill, Inc., ____ Ark. App. ____, ____ S.W.3d ____ (Feb. 9, 2005). The effects of aging could be considered prior to the addition of subsection (e). O'Hara v. J. Christy Constr. Co., ____ Ark. App. ____, ____ S.W.3d ____ (Feb. 8, 2006).

Our resolution of these two points of appeal make it unnecessary to address the remaining two points. The Commission's decision is reversed and remanded for proceedings consistent with this opinion.

Reversed and remanded.

Pittman, C.J., and Roaf, J., agree.

1 Neither the transcript of the December 1994 hearing nor the March 30, 1995 opinion and order were in the record before the ALJ/Commission and, therefore, they are not in the record before this court. However, the ALJ set out in his July 20, 2004 opinion the findings of fact and conclusions of law that, presumably, were entered in the March 30, 1995 opinion, and that is what we have relied upon in reciting these findings.