Perry v. Leisure Lodges, Inc., CA

• Citation: 718 S.W.2d 114,19 Ark.App. 143
• Decision Date: 29 October 1986
• Docket Number: No. CA,CA
• Parties: Nonie PERRY, Appellant, v. LEISURE LODGES, INC., Appellee. 86-128.
• Court: Court of Appeals of Arkansas

Page 114

718 S.W.2d 114

19 Ark.App. 143

Nonie PERRY, Appellant, v. LEISURE LODGES, INC., Appellee.

No. CA 86-128.

Court of Appeals of Arkansas,

Division I.

Oct. 29, 1986.

Don G. Gillaspie, El Dorado, for appellant.

Gerald D. Lee, Springdale, for appellee.

CLONINGER, Judge.

This appeal arises from the Workers' Compensation Commission's finding that appellant's second gastric bypass surgery was not compensable. Appellant argues that the Commission's decision was barred by res judicata and, in the alternative, that the Commission's findings were not supported by substantial evidence. Although we disagree with appellant's first argument we do find that the Commission's findings are not supported by substantial evidence and reverse and remand.

Appellant, Nonie Perry, sustained a compensable injury while employed as a licensed practical nurse with appellee, Leisure Lodges. On June 12, 1981, appellant was assisting a patient to the dining room when the patient became violent and pushed appellant over a wheelchair, causing appellant to injure her back. At the time appellant was five feet four inches tall and weighed about 294 pounds. Because of her obesity, appellant's back injury was difficult to diagnose and treat, and her physician recommended that she undergo surgery which would greatly decrease the size of her stomach. The surgery was performed in January of 1982, and in October of 1982 the surgery was found to be necessary and reasonable and appellant was awarded benefits.

Appellant lost approximately 99 pounds as a result of the surgery. In July of 1984, appellant began gaining back some of the lost weight and having problems with her stomach. An x-ray revealed that some of the staples used in the gastric bypass surgery had become loose. Her doctor, Dr. Harold Chakales, felt that appellant should have surgery again to correct the problem with the gastric bypass. Appellant returned to the doctor who had done the first surgery, Dr. Moises Menendez, but he felt that there were too many complications to risk surgery. Dr. Chakales then sent appellant to Dr. William F. Hayden, who recommended that the gastric bypass be revised and that appellant have a vagotomy and pyloroplasty, which would help prevent ulcers. Appellant had both of these procedures done plus Dr. Hayden corrected an incisional hernia.

In its opinion, the Commission found that appellant's volitional overeating caused the disruption of the staples and was an independent and intervening cause. The Commission found that appellant's second surgery was not compensable and that her first healing period had ended on July 12, 1982. The Commission did award appellant a four week period of temporary total disability covering the period of time she was hospitalized for epidural injections.

Appellant's first argument, that the Commission's finding is barred by res judicata, is without merit. It is appellant's contention that, since the first gastric bypass surgery was found to be compensable, then the law of the case requires a finding that the second surgery is also compensable.

Generally speaking, res judicata applies where there has been a final adjudication on the merits of an issue by a court of competent jurisdiction on all matters litigated and those matters necessarily within the issue which might have been litigated. Gwin v. R.D. Hall Tank Co., 10 Ark.App. 12, 660 S.W.2d 947 (1983). Even though the Workers' Compensation Commission is not a court, its awards are in the nature of judgments, and the doctrine of res judicata applies to its decisions. Gwin, supra.

Since it would have been impossible at the first hearing on compensability in October of 1982 to determine that appellant would need a second bypass, this is not an issue that could have been litigated at that time. Even though the surgical procedures are similar and the purpose was appellant's weight reduction, the issues were entirely different. The first time the issue was whether the procedure was reasonable and necessary medical treatment in light of appellant's injury. At the hearing which is now before us on appeal the issue was whether the second procedure was a natural and incidental consequence of the first procedure.

Appellant's next argument concerns whether the Commission's finding that appellant's volitional overeating caused the failure of the first surgery is supported by substantial evidence. We agree with appellant's contention that it is not.

On appeal, it is the duty of the appellate court to review the evidence in the light most favorable to the Commission's decision and uphold that decision if supported by substantial evidence. Black v. Riverside...