Opinion
CLAIM NO. F608022
OPINION FILED MAY 16, 2008
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE J. RANDOLPH SHOCK, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by HONORABLE FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondents appeal a decision of the Administrative Law Judge filed on May 18, 2007, ordering the claimant to undergo and evaluation by Dr. Ruth Thomas at the University of Arkansas School for Medical Sciences. The issue for the February 20, 2007, hearing was whether the claimant has developed Reflex Sympathetic Dystrophy as a result of her compensable right hand injury, for which she is entitled to medical and indemnity benefits. Prior to the hearing, the parties participated in a Prehearing Conference on January 2, 2007. The Prehearing Order specifically admonished the parties that all evidence "not provided within the terms of and guidelines set forth in this Order, will not be admitted and considered at the forthcoming hearing, unless permission of the Commission is obtained and for good cause shown." Neither party requested permission to introduce additional evidence or for additional time to obtain additional medical evidence. Moreover, neither party requested an independent medical examination from the Commission. Thus, both parties stood firm on their evidence and portrayed to the Commission that they were prepared to go forward with a hearing with the evidence as it existed at the time of the hearing.
Pursuant to A.C.A. § 11-9-511(a) the Commission has the authority to order a claimant to submit to a physical examination "as the commission may require from time to time if reasonable and necessary." However, we submit that once the parties advise that they are ready to go forward with a hearing, develop their evidence and actually present their case before an Administrative Law Judge, it is inappropriate for the Commission to exercise this authority.
In Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991), the Court of Appeals addressed whether it is appropriate for the Commission to reserve an issue for which the parties presented for determination. In Landers,supra, the Administrative Law Judge and the Commission on appeal reserved the issue of the claimant's entitlement to temporary total disability benefits from February 1, 1989, through June 10, 1989, finding that the record was "not sufficiently complete to allow a determination which would be fair and just to all parties concerned . . ." In determining if reservation of such an issue for the parties to further develop the evidence was appropriate, the court state:
It is the duty of the Workers' Compensation Commission to translate the evidence on all issues before it into findings of fact. Sanyo Manufacturing Corporation v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984). The Commission's statutory obligation is to make specific findings of fact and to decide the issues before it by determining whether the party having the burden of proof on an issue has established it by a preponderance of the evidence. White v. Air Systems, Inc., 33 Ark. App. 56, 800 S.W.2d 726 (1990); Ark. Code Ann. 11-9-705 (a)(3) (1987). The quoted paragraph is not a finding of fact, but is a declination to find a fact.
Ark. Code Ann. 11-9-705 (c)(1) provides that all evidence shall be presented to the Commission at the initial hearing on the controverted claim. The burden of proving a case beyond speculation and conjecture is on the claimant. Bragg, supra; 3 Arthur Larson, The Law of Workmen's Compensation, 80.33 (a) (1952).
By reserving the issue of whether the appellee was entitled to temporary total disability benefits for the period from February to June 1989, the Commission simply declined to say that the appellee failed to meet her burden of proof on this issue. This constitutes error on the part of the Commission as our workers' compensation statute states that the evidence shall be weighed impartially, and without giving the benefit of the doubt to any party. Ark. Code Ann. 11-9-704 (c)(4). The Commission has allowed the appellee a "second bite at the apple" by giving her another opportunity to present evidence substantial enough to carry her burden. Though we do not interfere with the actions of the Commission unless we find it has acted without or in excess of its authority, Allen Canning Company v. McReynolds, 5 Ark. App. 78, 632 S.W.2d 450 (1982), disregarding its duty to find the facts in order to give the appellee the benefit of the doubt is not within the Commission's authority.
In a case directly on point, this Commission vacated a decision of the Administrative Law Judge ordering the claimant to undergo an independent medical examination after the claimant presented her case in chief on an issue for determination. See Stewart v. Frolic Footwear, F.C. Opinion filed August 26, 1997 ( E504112). In Stewart v. Frolic Footwear, the administrative law judge ordered an independent medical examination and requested the doctor to address whether the nodules on claimant's fingers are causally related to claimant's carpal tunnel injury and surgery and to determine whether claimant is in need of further medical treatment as a result of her carpal tunnel syndrome and subsequent surgery. In vacating the award for an independent medical examination this Commission acknowledged the authority of the Commission "to order additional hearings for the purpose of taking additional evidence and the discretion to order an independent medical evaluation under appropriate circumstances." However, the Commission concluded that after the presentation of one's case before the Commission is not the appropriate time to exercise this authority. In so finding, the Commission noted:
Nevertheless, the Court of Appeals has also held that the Commission abuses its discretion by reserving an issue which serves no other purpose than to allow the claimant a "second bite at the apple" by giving the claimant an additional opportunity to present evidence substantial enough to prove a claim. See Gencorp Polymer Products v. Landers, 36 Ark. App. 190 (1991).
In the present case, we find that the administrative law judge abused his discretion in ordering an independent medical evaluation. In reaching that conclusion, we note that neither party requested an independent medical evaluation. To the contrary, both parties were prepared to proceed to a determination on the merits based on the hearing evidence. Furthermore, we note that neither the administrative law judge's comments on the record or his July 11, 1996, order state any basis for ordering an independent medical evaluation. In short, there is simply no basis in the record to suggest that an independent medical evaluation would be appropriate prior to a decision in this case.
As in Stewart v. Frolic Footwear, neither party requested an independent medical evaluation and both parties were prepared to proceed to a determination on the merits based on the hearing evidence. The Administrative Law Judge in the present case pointed out his concerns over the discrepancies in the objective findings as well as his concerns over whether the observations by Dr. Kelly actually supported a diagnosis of Reflex Sympathetic Dystrophy. Rather than reach the inevitable conclusion that the claimant has failed to meet her burden of proof, the Administrative Law Judge abused his discretion and has allowed the claimant "a second bite at the apple."
After weighing the evidence impartially, without giving the benefit of the doubt to either party, we find that the decision of the Administrative Law Judge to award an independent medical examination must be vacated. We further find that the claimant has failed to prove by a preponderance of the evidence that she has developed Reflex Sympathetic Dystrophy for which she is entitled to additional medical and indemnity benefits.
IT IS SO ORDERED.
___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
DISSENTING OPINION
I must dissent from the majority's opinion vacating the Administrative Law Judge's order reserving the issue of claimant's entitlement to additional benefits for Reflex Sympathetic Dystrophy, or RSD, as a complication of her compensable injury of July 15, 2006, pending the results of an Independent Medical Evaluation at the respondent's expense. Based on a de novo review of the record, I find that it was within the Administrative Law Judge's discretion to order an Independent Medical Evaluation and that the issue of claimant's entitled to additional benefits for Reflex Sympathetic Dystrophy, or RSD, as a complication of her compensable injury of July 15, 2006 was properly reserved by the Administrative Law Judge. I also find that the majority has erred by determining that the claimant did not meet her burden of proof by a preponderance of the evidence showing a causal connection between her compensable injury and her diagnosed RSD, as this issue was reserved by the Administrative Law Judge, and is not properly before the Full Commission for determination. Therefore, as I find that this case should be remanded to the Administrative Law Judge pending the results of the Independent Medical Evaluation paid for by the respondents, as ordered by the Administrative Law Judge, at which time the Administrative Law Judge can properly make a ruling on the currently reserved RSD issue, I must respectfully dissent.
On July 15, 2006, the claimant, who worked as a cashier at the respondent's convenience store, was changing prices on a gasoline sign when a plastic number measuring one foot by one and a half feet (1' x 1 ½') fell from twenty (20) to twenty-five (25) feet striking the middle and top of the claimant's right hand. The claimant testified that the blow resulted in bleeding, contusion and swelling. The claimant immediately reported the injury to the assistant manager, basic first aid was applied and medical treatment was sought at the Johnson Regional Medical Center Emergency Room. At the emergency room the claimant was treated and released with instructions to remain off work until July 26. Only July 19, the claimant sought treatment from Dr. Robert May, who had previously treated her for a fractured right elbow. Dr. May's clinical examination and follow-ups on July 19, July 26, and July 28 all indicate a growing suspicion of Reflex Sympathetic Dystrophy at the injury site. The respondent sent the claimant to Dr. David Rhodes for a "second opinion." Although Dr. Rhodes noted that a triple phase bone scan showed findings indicative of post-traumatic change involving the claimant's scaphoid and lunate in her right wrist, he opined that the claimant did not have findings supporting a diagnosis of Reflex Sympathetic Dystrophy. Dr. Rhodes released the claimant from his care on August 21, 2006 and the claimant sought treatment from Dr. Westbrook at the Westbrook Clinic. Dr. Westbrook's examination notes dated August 31, September 5, and September 6 all document objective medical evidence consistent with a diagnosis of Reflex Sympathetic Dystrophy.
On September 6, 2006, Dr. James Kelly, an orthopedic surgeon asked to consult by Dr. Westbrook stated:
Today she presents with a swollen, red hand, very painful. She has hyperhydrosis of the palm as well as excessive hair growth and shiny skin. . . . She has classic RSD findings and at this point I think that it warrants fairly aggressive treatment."
The Administrative Law Judge stated that he ordered an IME because he was concerned about the discrepancies in the objective findings that formed the basis for the diagnosis of RSD. The Administrative Law Judge stated that to insure a fair and just result to all parties concerned, the claimant should be evaluated for her hand complaints by a qualified medical doctor that specializes solely in injuries and conditions involving the hand, including RSD, namely, Dr. Ruth Thomas, an orthopaedic surgeon and head of the hand section at the University of Arkansas for Medical Sciences in Little Rock, Arkansas.
Ordering an IME before rendering a decision was properly within the ALJ's discretion, and does not, as the majority finds, give the claimant a "second bite at the apple" as was found in Stewart v. Frolic Footwear, Full Commission Opinion filed August 26, 1997 ( E504112). Here, the preponderance of the evidence shows that three of the claimant's treating physicians, Dr. Mays, Dr. Kelly and Dr. Westbrook, have all diagnosed the claimant with RSD, related to her compensable injury of July 15, 2006. The only doctor to opine otherwise is Dr. Rhodes, who saw the claimant for a "second opinion" at the request of the respondent. If any party is being given a "second bite at the apple" by the Administrative Law Judge's IME Order, it is undoubtedly the respondent.
Furthermore, the majority, in finding that the claimant did not meet her burden of proving the compensability of her RSD, an issue properly reserved by the Administrative Law Judge, has not only improperly addressed a reserved issue, but has erroneously disregarded Dr. May's, Dr. Westbrook's and Dr. Kelly's medical opinions. The Commission may not arbitrarily disregard medical evidence or the testimony of any witness.Coleman v. Pro. Transportation Inc., __Ark. App.___,___ S.W.3d ___ (2007).
If the issue were properly before the Full Commission, based on the preponderance of the evidence of record, I would find that the claimant has met her burden of proving by a preponderance of the evidence her entitlement to additional medical treatment for RSD, as a complication of her compensable injury of July 15, 2006.
For the aforementioned reasons I must respectfully dissent.
____________________________ PHILIP A. HOOD, Commissioner