{"id":"alj-H005445-2025-04-07","awcc_number":"H005445","decision_date":"2025-04-07","opinion_type":"alj","claimant_name":"Gerardo Munoz","employer_name":"Azz Galvanizing, Inc","title":"MUNOZ VS. AZZ GALVANIZING, INC. AWCC# H005445 April 07, 2025","outcome":"granted","outcome_keywords":["granted:5"],"injury_keywords":["cervical","shoulder","neck","back","sprain","carpal tunnel","wrist"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MUNOZ_GERARDO_H005445_20250407.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MUNOZ_GERARDO_H005445_20250407.pdf","text_length":16892,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H005445 \n \nGERARDO PEREZ MUNOZ, Employee CLAIMANT \n \nAZZ GALVANIZING, INC., Employer RESPONDENT \n \nAMERICAN ZURICH INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED APRIL 7, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant   represented   by EVELYN   E.   BROOKS,   Attorney   at   Law, Fayetteville, \nArkansas. \n \nRespondents  represented  by KAREN  H.  MCKINNEY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On March  12,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale, Arkansas.   A pre-hearing conference was conducted on January 15, 2025, \nand  a pre-hearing order  was  filed on that  same  date. A  copy  of  the  Pre-hearing  Order \nhas  been  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2. The prior Opinion of June 28, 2021, is final. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\nMunoz – H400445 \n \n-2- \n 1. Compensability of injury to claimant’s cervical spine on June 10, 2020. \n 2. Related medical. \n 3. Res judicata. \n 4. Law of case. \n 5. Claim proclusion. \n At the time of the hearing the parties agreed to litigate the claimant’s entitlement \nto payment of an impairment rating for his compensable right shoulder injury. \n The  claimant  contends his  neck  was  injured  at  the  same  time  his  shoulder  was \ninjured and he is entitled to medical treatment for his neck. Claimant reserves all other \nissues. \n With regard to the alleged cervical injury, respondents contend the claimant was \nthe subject of a full hearing on May 26, 2021 wherein claimant alleged a compensable \ninjury.  Following  the  taking  of  testimony  and  review  of  the  medical  records,  the  ALJ \nfound that the claimant proved he sustained a compensable injury to his right shoulder \nand  upper  arm. Res  judicata applies  where  there  has  been  a  final  adjudication  on  the \nmerits of an issue by a court of competent jurisdiction on all matters litigated and those \nmatters necessarily within the issue which might have been litigated. See Castleberry v. \nElite  Lamp  Company,  69  Ark.  App.  359,  13  S.W.  3d  211  (2000); Harvest  Foods  v. \nWasham, 52 Ark. App. 72, 914, S.W. 2d 776 (1996); Perry v. Leisure Lodges, Inc., 19 \nArk.  App.  143,  718  SW.  2d  114  (1986). Res  judicata applies  to  decisions  of  the \nWorkers’  Compensation  Commission  if  the  merits  of  the  issue  have  already  been \nsubject  to  a  full  and  fair  hearing.  Beliew  v.  Stuggart  Rice  Mill,  64  Ark.  App.  334,  980 \nS.W. 2d 270 (1998); Perry, supra. The rationale underlying the doctrine of res judicata is \n\nMunoz – H400445 \n \n-3- \nto  end  litigation  by  preventing  a  party  who  has  had  one  fair  trial  of  a  question  of  fact \nfrom again drawing it into controversary. Cox v. Keahey, 84 Ark. App. 121, 133 S.W. 3d \n430 (2003); Mohawk Tire & Rubber Co v. Brider, 259 Ark. 728, 536 S.W. 2d 126 (1976). \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted  on January  15,  2025,  and  contained  in  a pre-hearing  order  filed  that  same \ndate are hereby accepted as fact. \n 2. Claimant’s claim for compensability of an injury to his cervical spine on June \n10, 2020, is barred by the doctrine of res judicata. \n 3.  Claimant  has  met  his  burden  of  proving  by  a  preponderance  of  the  evidence \nthat he is entitled to payment of permanent partial disability benefits in an amount equal \nto 10% to the body as a whole for his compensable right shoulder injury. \n 4. Respondent has controverted claimant’s entitlement to payment of the 10% \nrating to the right shoulder and is liable for payment of an attorney fee. \n \n \n \n \n\nMunoz – H400445 \n \n-4- \nFACTUAL BACKGROUND \n It should be noted that the primary issue of the current claim is compensability of \na  cervical  spine  injury  on  June  10,  2020.  However,  before  addressing  that  issue  it  is \nimportant to set out the history of this claim.  \n Claimant is a 54-year-old man who began working for respondent in 2019. At the \nfirst hearing in this claim on May 26, 2021, claimant described his job duties: “I would \nbring the cold bars out of the water and then use a grinder to cut them so they could be \nused.” He also testified that on June 10, 2020, a piece of heavy metal got loose, and the \nfollowing occurred: \nI  was  working  with  some  chassis  with  my  partner  and  our \ncrane  was  off  and  I  don’t  know  how  was  it  that  the  next \ncrane  was  on  and  it  pushed  the  other  one,  and  so  that  it \nwould  not hit  me,  I  tried  to  push  it  back and  that  is  how my \nshoulder was hurt, my right shoulder. \n \n A  video  of  this  incident  was  submitted  into  the  record  at  the  time  of  the  first \nhearing, and it has been duplicated in the transcript of the most recent hearing. \n Following  this  incident,  claimant  was  sent  for  medical  treatment  and  diagnosed \nas suffering a sprain of the right shoulder. Claimant performed some light duty work for \nrespondent for several weeks, continuing to work for respondent until he was taken off \nwork after developing COVID. While he was off work, he was terminated by respondent.  \n Claimant’s claim for an injury to his right shoulder was denied and a hearing on \ncompensability of injury to his right shoulder and upper arm was conducted on May 26, \n2021.  Following  the  hearing,  an  Opinion  was  filed  by  this  administrative  law  judge  on \nJune  28,  2021,  finding  that  claimant  had  proven  a  compensable  injury  to  his  right \nshoulder  and  upper  arm;  and  awarding  payment  of  all  reasonable  and  necessary \n\nMunoz – H400445 \n \n-5- \nmedical  treatment.  Neither  party  appealed that  opinion  and  the  parties  have  stipulated \nthat it is final. \n After  the  first  hearing,  claimant  came  under  the  care  of  Dr.  James  Boyle  who \nperformed surgery on claimant’s right shoulder on April 25, 2022. After the surgery, \nclaimant  underwent  physical  therapy  and  was  released  by  Dr.  Boyle  on  August  30, \n2022. \n When  claimant’s  right  shoulder  complaints  continued,  he  sought  additional \nmedical  treatment  from  Dr.  Christopher  Dougherty.  Dr.  Dougherty  performed a  second \nprocedure  on  claimant’s  right  shoulder  on  October  17,  2023,  to  address  loosened \nhardware  as  well  as  impingement  syndrome  and  acromioclavicular  joint  arthritis.  At \nsome point, Dr. Dougherty also performed a carpal tunnel release on claimant’s right \nwrist. On June 5, 2024, Dr. Dougherty indicated that claimant could return to work with \ngradual increases in the amount of weight he could lift. A form completed at The Agility \nCenter  dated  June  26,  2024,  indicates  that  claimant  reached  maximum  medical \nimprovement  on  June  5,  2024,  and  that  he  has  a  10%  impairment  rating  to  his  right \nshoulder per the AMA Guides 4\nth\n Edition.  \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis cervical spine during the incident on June 10, 2020. \n \nADJUDICATION \n Claimant contends that in addition to his compensable right shoulder and upper \narm injury on June 10, 2020, he also suffered a compensable injury to the cervical spine \n\nMunoz – H400445 \n \n-6- \non that date. Respondent contends that the doctrine of res judicata bars litigation of the \ncervical spine claim.  \n Res  judicata applies  where  there  has  been  a  final  adjudication  on  the  merits  of \nan  issue  by a  court  of  competent  jurisdiction  on all  matters  litigated and  those  matters \nnecessarily  within  the  issue  which  might  have  been  litigated. Beliew  v.  Stuggart  Rice \nMill, 64 Ark. App. 334, 987 S.W. 2d 281 (1998). The key question is whether the party \nagainst  whom  the  earlier  decision  is  being  asserted  had  a  full  and  fair  opportunity  to \nlitigate the issue in question. Cater v. Cater, 311 Ark. 627, 846 S.W. 2d 173 (1993). \n Res judicata does not apply if a claimant has sustained a change in condition or \nseeks  benefits  for  a  subsequent  period  of  complications. Rothrock  v.  Advanced  Envtl. \nRecycling, 218 Ark. App. 88, 544, S.W. 3d 61.  \n Even though the Workers’ Compensation Commission is not a court, its awards \nare in the nature of judgements, and the doctrine of res judicata applies to its decisions. \nGwin v. R. D. Hall Tank Co., 10 Ark. App. 12, 660 S.W. 2d 947 (1983). \n I  find  that  the  matter  of  compensability  of  an  alleged  cervical  spine  injury  could \nhave been litigated at the time of the first hearing; therefore, the doctrine of res judicata \nis applicable and bars litigation of the current claim.  \n The  issue  at  the  time  of  the  first  hearing  was  compensability  of  an  injury  to \nclaimant’s right shoulder and upper arm. At the first hearing claimant did not mention \ncomplaints of neck pain immediately after his accident. However, at the second hearing \nclaimant  testified  that  he  had  neck  pain  present  since  the  time  of  the  accident.  This  is \nthe  only  significant  difference  in  claimant’s  testimony  at  the  first  hearing  versus  his \ntestimony at the second hearing.  \n\nMunoz – H400445 \n \n-7- \n At  some  point,  claimant’s  primary  care  physician, Dr.   Clinton   Turner, \nrecommended physical therapy for claimant’s right shoulder/arm pain. This was delayed \nfor  a  period  of  time  because  claimant  was  no  longer  working.  (Turner  report  of \nDecember  30,  2020).  Claimant  began  physical  therapy  on  January  20,  2021,  and  the \ninitial  evaluation  includes  complaints  of  right  sided  neck  pain  with  cervical  traction \nincluded in claimant’s physical therapy regimen. Thereafter, Dr. Turner in a report dated \nFebruary 19, 2021, indicated that he believed claimant had cervical radiculopathy, and \nhe  ordered  an  MRI  scan  that  was  performed  on  February  26,  2021,  and  read  as \nshowing  a  central  disc  protrusion  at  C5-6  and  C6-7. Thereafter, claimant’s treatment \nwas  primarily  for  his  right  shoulder  and  arm.  Nevertheless,  these  medical  reports \nexisted prior to the original hearing on May 26, 2021.  \n The  initial  hearing  on  May  26,  2021,  was  just  three  months  after  claimant’s \ncervical MRI scan. The testimony presented at the second hearing in this claim involves \nthe exact same accident previously testified to by claimant at the first hearing and with \nthe  exception  of  claimant  mentioning  pain  in  his  neck  at  the  second  hearing  it  is \nessentially  the  same  testimony.  Claimant  was  also  questioned  about  his  movements \nduring  the  accident  with  the  same  exact  video  used  to  question  his  movements  at  the \ntime of the first hearing. \n More  significantly, the  medical  evidence  relating  to  a  potential  cervical  spine \ninjury is the same medical evidence that existed at the time of the first hearing. Claimant \nhas not undergone any additional evaluations for his cervical spine complaints since the \nfirst hearing.  \n\nMunoz – H400445 \n \n-8- \n In  short,  virtually  all  of  the  evidence  that  existed  relating  to  a  potential  cervical \nspine injury existed at the time of the first hearing. This supports the finding that this is a \nmatter that might have been litigated at that time.  \n In  support  of  his  contention  that  the  doctrine  of res  judicata is  not  applicable, \nclaimant notes that in his contentions at the time of the first hearing it includes language \nstating: “Claimant reserves all other issues.” No mention was made of reserving the \nspecific  issue  of  compensability  of  an  injury  to  the  cervical  spine.  Obviously,  there  are \ninstances  in  which  compensability  of  injuries  to  different  parts  of  the  body  may \nnecessitate  more  than  one  hearing,  such  a  newly  discovered  diagnosis  or  testing \nrevealing an additional potential body part that was injured. Those do not exist here. Nor \nis  there  any  evidence of  a  change  in  condition  or  of the  claimant seeking benefit  for  a \nsubsequent period of complications.  \n In  this  case,  the  evidence  is  essentially  the  same  as  the  evidence  presented  at \nthe  first  hearing.  No  reason  has  been  offered  as  to  why  compensability  of  an  injury  to \nclaimant’s cervical spine could not have been litigated at the time of the first hearing. \nThus, I do not find that this general statement in claimant’s contentions is sufficient to \nnullify the doctrine of res judicata.  \n The  purpose  of  the  doctrine  of res  judicata is  to  put  an  end  to  litigation  by \npreventing a  party who  had  one  fair  trial  on  a  matter  from  relitigating  the  matter  a \nsecond  time. Cox  v.  Keahey,  84  Ark.  App.  121,  133  S.W.  3d  430  (2003); Brandon  v. \nArkansas  Western  Gas  Company,  76  Ark.  App.  201,  61  S.W.  3d  193  (2001).  As \npreviously  noted,  the  key  question  is  whether  the  party  against whom the  earlier \ndecision is being asserted had a full and fair opportunity to litigate the issue in question. \n\nMunoz – H400445 \n \n-9- \nCater, id. This includes not only the matters litigated, but also those matters within the \nissue   that   might   have   been   litigated.   Here,   it   seems   clear   that   the   issue   of \ncompensability  of  an  injury  to  claimant’s  cervical  spine  was  within  the  issue  of \ncompensability and could have been litigated at the time of the first hearing. Claimant’s \ntestimony at the two hearings was essentially the same and the medical evidence was \nin existence at the time of the first hearing.  \n Based  on  the  foregoing,  I  find  that  the  issue  of  compensability  of  injury  to  the \nneck on June 10, 2020, is an issue that could have been litigated at the time of the first \nhearing. Therefore, this claim is barred by the doctrine of res judicata. \n The  final  issue  for  consideration  involves  claimant’s  request  for  payment  of \npermanent partial disability benefits based on a 10% impairment rating assigned for his \ncompensable right shoulder injury. Claimant has undergone two surgical procedures on \nhis  right  shoulder.  The  documentary  evidence  contains  a  report  dated  June  26,  2024, \nfrom The Agility Center noting that claimant reached maximum medical improvement on \nJune 5, 2024, and stating that according to the AMA Guides 4\nth\n Edition, claimant has a \npermanent impairment rating equal to 10% to the body as a whole for his right shoulder \ninjury.  I  find  that  the  report  assigning  the  10%  rating  is  credible  and  entitled  to  great \nweight.   Therefore,   I   find   that   claimant   has   met   his   burden   of   proving   by   a \npreponderance  of  the  evidence  that  he  is  entitled  to  payment  of  permanent  partial \ndisability benefits in an amount equal to 10% to the body as a whole. Respondent has \ncontroverted payment of this impairment rating. \n \n \n\nMunoz – H400445 \n \n-10- \nAWARD \n Claimant’s claim for a compensable cervical spine injury is barred by the doctrine \nof res  judicata. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to payment of permanent partial disability benefits in an amount equal to 10% to \nthe body as a whole. This payment was controverted by the respondent. \n Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant. Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded. This fee is to be paid one-half by the carrier and one-half \nby the claimant. Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nRespondents are liable for payment of the court reporter’s charges for \npreparation of the hearing transcript in the amount of $582.30. \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H005445 GERARDO PEREZ MUNOZ, Employee CLAIMANT AZZ GALVANIZING, INC., Employer RESPONDENT AMERICAN ZURICH INS. CO., Carrier RESPONDENT OPINION FILED APRIL 7, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Ark...","fetched_at":"2026-05-19T22:41:34.604Z","links":{"html":"/opinions/alj-H005445-2025-04-07","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MUNOZ_GERARDO_H005445_20250407.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}