Mohawk Tire & Rubber Co. v. Brider

Elsijane T. 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(1) (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 13,254.68 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. Footnotes [1] This award basically provided for payments of $49 per week from April 22, 1969, to an including February 7, 1973, and an additional period of benefits for 22 1/2 weeks after February 7, 1973, plus reasonable medical expenses. [2] After a hearing before the Administrative Law Judge appellants later reduced the amount claimed as a credit to 83,254.68, computed by multiplying the 849 per week award by 66.4 weeks.