Mohawk Tire & Rubber Co. v. Brider

• Decision Date: 10 May 1976
• Docket Number: No. 75--359,75--359
• Citation: 536 S.W.2d 126,259 Ark. 728
• Parties: MOHAWK TIRE AND RUBBER COMPANY and Travelers Insurance Company, Appellants, v. E. T. BRIDER, Appellee.
• Court: Arkansas Supreme Court

Page 126

536 S.W.2d 126

259 Ark. 728

MOHAWK TIRE AND RUBBER COMPANY and Travelers Insurance Company, Appellants, v. E. T. BRIDER, Appellee.

No. 75--359.

Supreme Court of Arkansas.

May 10, 1976.

Wright, Lindsey & Jennings, Little Rock, for appellants.

Mike J. Etoch, Jr., Helena, for appellee.

ROY, Justice.

This appeal results from a decision of the Workmen's Compensation Commission, affirmed by the Circuit Court, denying credit for payments made by an employer under a disability insurance plan during a period of temporary total disability following an injury to its employee, E. T. Brider.

In April, 1969, Brider developed a debilitating pulmonary disorder and applied for benefits available from a disability insurance policy furnished by Mohawk Tire and Rubber Company (hereafter Mohawk) to cover all employees. This policy was intended to cover accident or sickness not compensable under workmen's compensation and provided that the concurrent receipt of workmen's compensation benefits would result in the deduction of the amount of those benefits from the disability payments. The co-appellant, Travelers Insurance Company, is both the insurer in the disability policy and the compensation carrier for Mohawk. Appellee's claim for payments under the disability policy was granted by Travelers, and he received weekly payments of $85 for a total period of 66.4 weeks until expiration of eligibility in January, 1972.

In April, 1972, appellee filed for workmen's compensation benefits contending that his disability was work related. This claim was controverted by appellants based upon their contention that the condition was unrelated to appellee's employment and, in any event, appellee was barred by the statute of limitations, Ark.Stat.Ann. § 81--1318(b) (Supp.1973), from proceeding because more than two years had elapsed since the condition occurred. These contentions were rejected by the Workmen's Compensation Commission, and appellee was awarded $49 per week for the entire period. ¹ This Court affirmed in Mohawk Tire & Rubber Co. v. Brider, 257 Ark. 587, 518 S.W.2d 499 (1975). We specifically found appellee's condition was work related and the statute of limitations was tolled by payment of either income or medical benefits. The payment of compensation in the form of medical benefits was not controverted by the employer. See Brooks v. Ark. Best Freight System, Inc., 247 Ark. 61, 444 S.W.2d 246 (1969).

Nevertheless, after this decision appellants tendered only partial payment of the amount awarded by the Workmen's Compensation Commission, deducting credit for the amount paid during the 66.4 weeks appellee received payments under the disability policy. Appellee refused this tender, and the matter was again set for hearing by the Workmen's Compensation Commission. After the hearing the Commission, in an order filed on August 13, 1975, stated that in its original opinion dated May 15, 1974, this very same issue seeking credits had been raised and was denied. The Commission correctly concluded that since on appeal to this Court the case was affirmed the matter was res judicata. The full Commission additionally assessed a 20% penalty against appellants pursuant to Ark.Stat.Ann. § 81--1319(f) (Repl.1960) for failure to pay the award within 15 days after it became due.

Appellants argue for reversal that the denial of a credit for $3,254.68 paid under the 'accident and sickness' policy is contrary to the law. This contention is without merit as the right of appellants to a credit was foreclosed in their first appeal and cannot be relitigated here.

The Arkansas Workmen's Compensation Law covering credit for compensation or wages paid is found in Ark. Stat.Ann. § 81--1319(m) (Repl.1960), which reads as follows Credit for compensation or wages paid. If the employer has made advance payments of compensation he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. * * * (emphasis supplied)

The Commission held that because the earlier payments were not for work associated accident or illness they were not 'advance payments of compensation' and no credit was allowable. Appellants did not appeal to the Supreme Court on the issue of whether a credit should be allowed.

Since this issue was submitted to and decided adversely to appellants by the Commission the bar of res judicata is invoked as effectively as if the issue had been presented to this Court.

In Hollis v. Piggott Junior Chamber of Commerce, 248 Ark. 725, 453 S.W.2d 410 (1970), quoting from an earlier Arkansas decision, it was stated that:

'* * * After judgment on the merits, a party cannot afterwards litigate the same question in another action, although some argument might have been urged on the first trial that would have led to a different result.' (emphasis the Court's)

The rationale behind holding an issue to be res judicata in a subsequent proceeding is to '. . . end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, . . ..' Ted Saum & Co. v. Swaffer, 237 Ark. 971, 377 S.W.2d 606 (1964).

Appellants' second contention that the 20% penalty should not be imposed upon the entire amount of the award is equally without merit. After the decision by this court in Mohawk, supra, upholding the decision of the Workmen's Compensation Commission granting benefits to appellee, appellants arbitrarily withheld the sum of $5,645.71 from the amount due under the Commission's award and also reduced the payment of attorney's fee accordingly. ²

Appellee was not required to accept appellants' tender of approximately 50% of what was due under the mandate of the Arkansas Supreme Court affirming the award of the Commission and expose himself to the peril of appellants' possible argument that acceptance of the lesser amount constituted accord and satisfaction. Accordingly we find the failure of appellants to comply with the award of the Commission, affirmed by this Court, exposes them to the sanction of § 81--1319(f) and a 20% penalty on the entire amount of the award was properly applied herein.

Affirmed.

JONES and BYRD, JJ., dissent.

JONES, Justice (dissenting).

I do not agree with the majority opinion in this case. The facts relative to insurance coverage are slightly unusual in that the same carrier had both the group and compensation coverage and the coverages overlapped. It is my opinion the group coverage simply supplemented the compensation coverage where compensation covered disability was involved.

The group coverage provided for the payment of $85.00 per week and the coverage included disability 'due to accident or occupational illness.' Brider's disability was not only caused by a series of accidents (inhalation of smoke and chemical fumes) within the meaning of the Workmen's Compensation Law, it was also caused by 'occupational illness' in the sense that the occupation caused the illness which resulted in the disability.

No serious effort was made by anyone to determine whether Brider's disability was occupational within the workmen's compensation coverage until the payments under his group policy were exhausted and he filed claim for workmen's compensation benefits. This is understandable because the weekly benefits were greater under the group policy and Brider had no reason to complain or make inquiry. The employer or its insurance carrier did not question Brider's disability and his entitlement under the group policy and really had no reason to do so until the benefits under the group coverage expired and Brider filed claim for compensation. The compensation and group carrier was paying greater benefits under the group policy than were payable under the compensation coverage and, until the benefits under the group policy were exhausted, it was all the same in dollars and cents to the appellants because the group policy contained a provision as follows:

2. Deduction for Workmen's Compensation Benefits

In the event that an Employee received weekly compensation under a Workmen's Compensation Act for any period with respect to which he is also entitled to weekly benefits under Paragraph 1 of this Section C, the amount of such weekly compensation payable under such Act shall be deducted from the amount of the weekly benefit otherwise payable to such Employee under said Paragraph 1.

As it turned out, Brider should have been receiving workmen's compensation benefits all the time from the beginning of his disability. Instead, he did receive full benefits under the group coverage without deduction for compensation payments. The compensability for his disability under the Workmen's Compensation Law was not finally determined until we affirmed the circuit court and Commission in our previous decision in this case. Mohawk Tire & Rubber Co. et al. v. Brider, 257 Ark. 587, 518 S.W.2d 499.

Now, if the appellants had recognized Brider's disability as compensable under the Act and had made payments accordingly, there is no question that such payments should have been credited against the larger weekly amount payable under the group policy. It is my view that the appellant-carrier is still entitled to such credit. It is clear to me that the group policy did not contemplate double coverage but only supplemental coverage where compensation coverage applied.

It is quite true that the appellant-employer and carrier controverted the appellee's claim for compensation benefits, except medical, and contended that his disability was not related to his employment but was only covered under the time limited group policy. We did not agree with that contention and in affirming the circuit court judgment which affirmed the Commission's award, we held in effect that Brider was entitled to compensation benefits which should have been paid from the inception of his disability. It could only follow, as I view this case, that as a matter of right as well as a matter...