Opinion
CLAIM NO. E304196
ORDER FILED NOVEMBER 1, 1994
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by RICHARD S. MUSE, Attorney at Law, Hot Springs, Arkansas.
Respondent represented by JIM TILLEY, Attorney at Law, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Remanded.
ORDER
This matter comes on for appeal before the Full Commission from the October 8, 1993 decision of the Administrative Law Judge finding that claimant has proven by a preponderance of the credible evidence that she sustained a work-related injury.
After carefully conducting a de novo review of the entire record, we remand this matter back to the Administrative Law Judge for him to conduct a proper hearing in this matter; to submit a proper prehearing questionnaire that will be complied with by the parties; and, to render a decision based upon the evidence in the record. We also direct the Administrative Law Judge to issue a subpoena for Mr. Terry Dugan.
A review of the record indicates that the Administrative Law Judge based his opinion with regard to controversion of this matter on evidence that is outside the record. Thus, we are unable to properly conduct a de novo review on appeal.
We find that the Administrative Law Judge considered evidence not in the record. Apparently, the Administrative Law Judge was of the opinion that the testimony of Mr. Terry Dugan would have been controlling in this case. However, Mr. Dugan was not a witness in this matter. Rather than continue the hearing and require the testimony of Mr. Dugan; or order the evidentiary deposition of Mr. Dugan; or consider only the testimony in the record, it was apparently determined that Mr. Dugan's testimony would support claimant's claim. This issue alone is sufficient to require us to remand this matter; however, there also is the issue of additional temporary total disability benefits.
A prehearing order in this matter indicated that claimant was requesting temporary total disability benefits from March 8, 1993 through June 30, 1993. At the hearing, claimant's attorney stated that he did not want to be bound by the June 30, 1993 date as set out in the prehearing order. Claimant's attorney stated that he had sent claimant for additional medical treatment. Respondent was not advised of the other party's actions. Furthermore, the additional medical records were not even ready, thus the Administrative Law Judge issued an incomplete order. We are of the opinion that the issue of temporary total disability should have been determined at the hearing based upon the dates set forth in the Prehearing Conference Order.
We remand this matter to the Administrative Law Judge to conduct a proper hearing consistent with the rules and regulations promulgated by the Arkansas Workers' Compensation Commission and pursuant to Arkansas law.
IT IS SO ORDERED.
DISSENTING OPINION
I must respectfully dissent from the majority's order remanding this matter to the Administrative Law Judge "to conduct a proper hearing in this matter; to submit a proper prehearing questionnaire that will be complied with by the parties; . . . to render a decision based upon the evidence in the record," and to issue a subpoena for Mr. Terry Dugan. Simply put, Respondents are being given a second chance to rebut claimant's evidence as to the compensability of her claim.
The Administrative Law Judge has done nothing improper in this case. After finding that claimant's testimony was credible and supported by the medical evidence, the Administrative Law Judge made the following observation:
I feel compelled to point out that during the claimant's case In Chief, Terry Dugan, the claimant's lead man was sitting at counsel table at (sic) the respondent's representative. During the claimant's testimony, specifically, when she maintained that she reported injuring herself while lifting at work, Mr. Dugan appeared to nod in agreement. Following a recess, Mr. Dugan did not appear in the courtroom. Because of the conflicting testimony between the claimant and Mr. Turner, this Administrative Law Judge called Mr. Dugan as a witness; however, Mr. Dugan had left the building. Where no explanation is offered for the absence of company employees as witnesses, who are in a position to contradict the claimant's testimony, if it is not true, the Commission as triers of fact, may properly draw the inference that their testimony would have been unfavorable to the company. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W.2d 950 (1972).
As noted above, the Administrative Law Judge had already determined that claimant's testimony was credible and supported by the medical evidence. The Administrative Law Judge merely made an observation that respondents had the opportunity to rebut claimant's testimony and failed to do so. He never said Dugan's testimony would be controlling.
More importantly, the Administrative Law Judge's observations concerning Terry Dugan were not improper as being outside the record. In Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 (1989), the Commission had relied on the Administrative Law Judge's observations at the hearing concerning claimant's demeanor. Respondent argued that the Commission erroneously based its decision on facts outside the record. However, the Arkansas Supreme Court held that "[w]e wholly reject the argument and expressly hold that the Commission is entitled to rely on the Administrative Law Judge's observations and comments made about the claimant's demeanor, conduct, appearance or reaction at the hearing." This position was reaffirmed in Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991), wherein it was stated that the Court allows "the Commission to rely on an Administrative Law Judge's stated perceptions of the demeanor, conduct, appearance, or reaction at the hearing."
If the Commission, without the benefit of personally observing the proceedings, can rely on an Administrative Law Judge's observations, surely an Administrative Law Judge can rely on his own observations to arrive at a decision on the merits.
Moreover, respondents have not complained that the Administrative Law Judge improperly considered Dugan's mysterious and convenient absence at some point after claimant had given her testimony. Further, respondents have not requested a remand in order to obtain Dugan's testimony. In fact, Dugan's name is never mentioned in respondents' briefs to the Commission.
The majority directs that the Administrative Law Judge issue a subpoena for Dugan. However, prior to the hearing, a subpoena to compel Dugan's attendance was issued by an Administrative Law Judge at respondents' request and he was present at the hearing as respondents' designated representative during claimant's testimony. Again, respondents have not complained that Dugan failed to honor the subpoena.
Finally, the majority remanded this matter to the Administrative Law Judge "to submit a proper prehearing questionnaire that will be complied with by the parties." This is apparently in reference to the determination concerning temporary total disability. The majority intimates that the Administrative Law Judge failed to comply with the prehearing questionnaires and the subsequent prehearing order. However, claimant's prehearing questionnaire and the prehearing order indicate that claimant was seeking temporary total disability benefits from March 8 through June 30, 1993. Admittedly, claimant's attorney asked the Administrative Law Judge to allow claimant's contentions in this regard to be modified to seek benefits to an uncertain future date. The Administrative Law Judge clearly denied this request by finding that "there is no competent evidence to award temporary total disability beyond June 30, 1993. Thus, I fail to see what the Administrative Law Judge did that was improper concerning this issue.
This matter should have been decided on its merits rather than being remanded to the Administrative Law Judge in order to allow respondents a second chance to present rebuttal testimony. Therefore, I must respectfully dissent from the order of the majority.
PAT WEST HUMPHREY, Commissioner