dissenting. This is a one-brief workers’ compensation appeal where the appellant contends that the Commission erred when it held that his claim for additional permanent disability benefits was barred by res judicata and that the Commission erred when it ruled that he faded to prove by a preponderance of the evidence that changed circumstances regarding his condition since the time of the last permanent disability award entitled him to additional permanent disability benefits. Because I find no basis for reversal, and thereby disagree with the majority, I must respectfully dissent.
Appellant’s claim for additional permanent disability benefits is barred by res judicata. He initially sought permanent total disability benefits or wage loss benefits exceeding the 20% impairment rating assessed for his early 1993 recurrent inguinal hernia and femoral nerve impingement (following a right inguinal hernia repair in 1990). The Commission rejected the claim of permanent total disability benefits, but awarded wage-loss disability benefits equal to an additional 20% to the body as a whole for a total disability award of 40% to the body. In doing so, the Commission stated that the appellant “is somewhat exaggerating the disabling effects of his injury, and is also poorly motivated to return to the work force . . .” The court of appeals affirmed that decision in an unpublished opinion. See O’Hara v. J. Christy Constr., No. CA 98-599 (Ark. App. Mar. 3, 1999) (not designated for publication).
Appellant now appeals from the Commission’s January 13, 2005, decision that reversed an ALJ opinion rendered on August 15, 2003, wherein the ALJ found that appellant “has sustained an increase in his permanent disability or loss of earning capacity in the amount of 30% above the previous award of 40% to the body as a whole.” The Commission reversed the ALJ for two reasons. First, it held that the appellant’s claim for additional benefits based on an alleged change in his physical condition was barred by res judicata. Second, the Commission held that even if the claim for additional benefits were not barred by res judicata, appellant failed to prove by a preponderance of the objective evidence that he had sustained a change in his physical condition.
I agree with the Commission that appellant’s claim for additional wage-loss disability benefits is barred by res judicata. The Commission explicitly adjudicated appellant’s claim for wage-loss permanent disability benefits in its February 2, 1998, decision. The present claim for additional wage-loss disability benefits merely seeks to relitigate the extent of appellant’s wage-loss disability after that question has already been resolved by the Commission’s finding that he suffered an anatomical impairment in an amount of 20% to the body as a whole and is entitled to wage loss disability benefits in an amount equal to an additional 20% to the body as a whole for a total disability rating of 40% to the body as a whole. The Commission’s award was affirmed in the face of appellant’s contention that the Commission’s determination that he suffered only a 40% permanent partial disability was not supported by substantial evidence and that he is totally and permanently disabled. Thus, to the extent that appellant now challenges the Commission’s denial of his claim for additional wage-loss disability benefits up to a determination that he is totally and permanently disabled under the “odd-lot” doctrine, appellant’s challenge must fail. Appellant was found to not be permanently and totally disabled no later than March 3, 1999.
It is certainly true that Arkansas permits an injured worker to seek additional permanent disability benefits based on changed circumstances following a previous adjudication. Arkansas Code Annotated section ll-9-522(d) (Repl. 2002) authorizes the Commission to reconsider the question of functional disability and amend a previous disability award based on facts that have occurred after the original disability determination, provided that “any party” requests reconsideration within one year after the post-award facts have occurred. Furthermore, section ll-9-713(a) (Repl. 2002) permits a worker to petition the Commission for modification of a previous award based on change in physical condition. As appellant accurately states in his brief, the supreme court’s decision in International Paper Co. v. Tuberville, 302 Ark. 22, 786 S.W.2d 830 (1990), stands for the proposition that even advancing age qualifies as a factor that the Commission can consider in determining whether a change of circumstances has occurred. That decision does apply to appellant because his injury pre-dated the July 1, 1993, effective date of Act 796 of 1993, which abolished advanced age as a permissible factor for making increased permanent disability awards arising from changed circumstances. See Ark. Code Ann. § ll-9-713(e).
Nevertheless, Tuberville does not compel the Commission to believe a worker’s allegation of increased loss of earning capacity. What the Commission decided in the present case amounts to a finding that the appellant failed to prove that his condition had changed. Appellant contends that neither the relevant statute nor the holding in Tuberville requires objective proof of changed circumstances, but that any change in the factors set out in Glass v. Edens, 233 Ark. 786, 346 S.W.2d 681 (1961), will suffice to support modifying a previous permanent disability award. That is correct; however, the worker still must prove by a preponderance of evidence that the circumstances have changed.
The Commission was certainly entitled to believe or disbelieve appellant’s testimony about the extent of his incapacity. Although appellant testified during the April 17, 2003, hearing on his motion for additional benefits that his condition is worse than it was in 1997, his testimony was not corroborated or otherwise substantiated by any independent proof. Indeed, under cross-examination, appellant conceded that he was taking Amitriptyline when his claim was heard in 1997, that he takes more of that drug now but has not seen a doctor for several years, and that he testified in 1997 (as in 2003) that he had fallen several times. The Commission had as much right to disbelieve appellant’s testimony in 2003 as it did in 1997 (before it rendered the 20% award for wage loss-disability in the face of appellant’s contention that he was entitled to permanent total disability benefits).
The Commission made no error of law when it denied the claim for additional benefits because it reasoned:
[T]here has been no change in the claimant’s documented physical condition after he reached maximum healing. Nor does the record support the ALJ’s conclusion in the present matter that the claimant has sustained a “progression of the peripheral neuropathy suffered as a result of the surgical repair of the March 13, 1993 hernia.”
The majority maintains that this statement, coupled by a comment about the lack of a documented objective change in appellant’s physical condition, imposed an unauthorized requirement of objective findings to support a claim for additional benefits. Read in the context of the whole record, the Commission merely declared that appellant’s allegations of changed circumstances have not been substantiated by any credible proof from the medical community. The Commission declared that the appellant exaggerated the extent of his affliction in its earlier decision. The only proof on the changed circumstances allegation came from appellant and from treatment providers. The Commission was certainly entitled to disbelieve appellant in the later instance where his self-serving testimony about his medication intake and other complaints was not corroborated by any persuasive proof from any treatment provider, where he had not sought treatment for his complaints of depression from the Veterans Administration (claiming that he distrusted the service he would receive from the VA in that treatment), and where appellant had apparently sought no other medical treatment consistent with his alleged increase in peripheral neuropathy for several years.
This case is not about the legal effect of the original decision in Tuberville. It is merely about whether the Commission’s opinion contains a substantial basis for denial of the relief appellant sought. Given the Commission’s ability to weigh the evidence and assess the appellant’s credibility, I see no reason to reverse.
I am authorized to state that Judges Bird and Crabtree join in this dissenting opinion.