Bussell v. Georgia-Pacific Corp.

981 S.W.2d 98, 64 Ark. App. 194, 1998 Ark. App. LEXIS 812
Court of Appeals of Arkansas·Decided December 9, 1998·No. CA 98-667·Published·Cited by 5 cases

Opinion

Margaret Meads, Judge.

This is the second appeal of this workers’ compensation case. The initial claim was brought by appellant, R.H. Bussell, who fell on September 7, 1986, when a stair broke in appellee’s power plant causing him to fall a distance of approximately four feet and to land flat on his back on the floor. As a result of his injuries, appellant was assessed an anatomical rating of forty percent to the body as a whole. Appellee accepted responsibility for only twenty percent, and appellant filed a claim alleging that appellee controverted his claim and also that he had been injured as a result of a safety violation, entitling him to a twenty-five percent increase in compensation.

In an opinion entered March 19, 1993, an administrative law judge (ALJ) ordered appellee to pay appellant an amount representing a twenty-five percent anatomical impairment plus a twenty-five percent increase in “compensation provided for by Ark. Code Ann. § 11-9-501 (a)-(d) pursuant to Ark. Code Ann. § 11-9-503” for the safety-violation claim. Appellee was further ordered to pay all reasonable related medical, hospital, nursing, and other apparatus expenses arising from appellant’s compensable injury. In an opinion entered October 18, 1993, the Commission found that appellant failed to prove by clear and convincing evidence that his injury was substantially occasioned by a safety violation and reversed the ALJ in this regard.

Appellant appealed to this court, and in Bussell v. Georgia-Pacific Corp., 48 Ark. App. 131, 891 S.W.2d 75 (1995), we held that Ark. Code Ann. § 11-9-503 (1987)1 provides for a twenty-five percent increase in compensation where it is established by clear and convincing evidence that an injury is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, and that appellant had established a safety violation. We reversed and remanded to the Commission for an award of benefits “consistent with our holding.” On remand, the Commission entered an order on May 10, 1995, stating that because this court found appellant proved the safety violation “we find that the compensation which is provided for in Ark. Code Ann. § 11-9-501 (a)-(d) and awarded to the claimant in the prior awards of this Commission shall be increased by twenty-five percent (25%).”

Appellee submitted to appellant certain checks dated June 26, 1995, which it claimed satisfied the award. Appellant did not agree and contended that he was entitled to a twenty-five percent increase on all compensation as a result of the safety violation and for attorney fees based upon the same amount. Appellee maintained that the checks represented timely and appropriate payment and that any attempt to alter the formula used to calculate the payments was barred by res judicata. In an opinion entered March 21, 1997, the ALJ held that appellant was entitled to a twenty-five percent increase in the payment of all indemnity benefits incurred as a result of his September 7, 1986, injury and an award of attorney fees based upon the twenty-five percent increase to the temporary total, permanent partial, and permanent total disability benefits due appellant.

In an opinion entered February 18, 1998, the Commission found that appellant was entitled to a twenty-five percent increase in the compensation rate for appellant’s permanent disability compensation in excess of the twenty percent anatomical impairment which had been accepted and paid by appellee. The Commission found, however, that the doctrine of res judicata barred application of the twenty-five percent penalty to appellant’s temporary total disability compensation or to the twenty percent anatomical impairment accepted and paid by appellee prior to the first hearing on appellant’s claim. According to the Commission, the plain language of its May 10, 1995, order held appellee Hable for the twenty-five percent increase on indemnity benefits “awarded to the claimant.” The Commission held that the twenty percent anatomical impairment accepted by appellee was never “awarded to the claimant in the prior awards of the Commission” because it had been accepted by appellee, and if appellant had felt aggrieved by the Commission’s May 1995 order, the proper remedy would have been an appeal. Because appellant failed to appeal from that order, the Commission held him to be bound by it.

Appellant appeals from the order entered February 18, 1998, contending that he is entitled to have all benefits payable under Ark. Code Ann. § 11-9-501 (a)-(d) (1987), including temporary total and permanent total disabifity, increased by the twenty-five percent penalty for the safety violation and that attorney fees should be assessed on the entire award for the safety violation. Appellee has filed a cross-appeal contending that the safety violation penalty does not apply to the wage-loss portion of appellant’s permanent total disabifity.

Appellant argues that he has been denied benefits to which this court held him entitled, and asks that we reverse the Commission’s February 18, 1998, opinion and direct an order for payment of benefits. Appellee responds that the Commission’s May 10, 1995, order determined the method of calculating benefits due appellant; that appellant faded to appeal from that order; and that appellant is now barred from reopening or refitigating this issue. Appellee says that the Commission correctly found appellant’s challenge to its May 10 order barred by res judicata.

It is true that the doctrine of res judicata, which is applicable to the decisions of the Commission, forbids the reopening of matters once judicially determined by competent authority. Tuberville v. International Paper Co., 18 Ark. App. 210, 711 S.W.2d 840 (1986). However, in the first appeal of this case, we issued a mandate reversing the Commission’s finding that appellant failed to show that his injury was caused in substantial part by a safety violation. We cited Ark. Code Ann. § 11-9-503 (1987) and stated that it provides for a twenty-five percent increase in compensation where it is established by clear and convincing evidence that an injury is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, and we remanded for an award of benefits consistent with our holding.

Whatever is before the supreme court and disposed of in the exercise of its appellate jurisdiction must be considered settled, and the lower court must carry that judgment into execution according to its mandate. Fulkerson v. Thompson, 334 Ark. 317, 974 S.W.2d 451 (1998). The trial court, and by analogy the Commission, has no power to change or extend the mandate of the appellate court. Carroll Elec. Coop. Corp. v. Benson, 319 Ark. 68, 889 S.W.2d 756 (1994); Morrison v. Tyson Foods, Ind., 11 Ark. App. 161, 164, 668 S.W.2d 47, 48 (1984).

In Fortenberry v. Frazier, 5 Ark. 200, 202 (1843), the supreme court held:

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Bussell v. Georgia-Pacific Corp., 981 S.W.2d 98, 64 Ark. App. 194, 1998 Ark. App. LEXIS 812 (Ark. Ct. App. 1998).

981 S.W.2d 98 (Bussell v. Georgia-Pacific Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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