Opinion
CLAIM NO. F010941
ORDER FILED SEPTEMBER 27, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE MICHAEL HAMBY, Attorney at Law, Greenwood, Arkansas.
Respondents represented by the HONORABLE J. LESLIE EVITTS III, Attorney at Law, Fort Smith, Arkansas.
ORDER
The claimant appeals an opinion and order filed by the Administrative Law Judge on May 22, 2001. In that opinion and order, the Administrative Law Judge found that the claimant has failed to prove by a preponderance of the evidence that he sustained a compensable injury to his back while employed by the respondent. After conducting a de novo review of the entire record, we vacate the Administrative Law Judge's finding and remand to the Administrative Law Judge for additional findings in light of evidence not made available to the Administrative Law Judge prior to his May 22, 2001 opinion and order.
The claimant began working for the respondent in 1996. The claimant contends that on or about April 26, 2000, he was performing his job of shoveling trim from meat when he developed back pain in his low back and hip. The claimant testified that he reported the incident to his supervisor, and that the claimant later asked to go home early and was allowed to do so. According to the claimant, he sought medical treatment from Dr. Hale, a chiropractic physician, the next morning before reporting to the respondents' nurse, Rhonda Mayer. The claimant testified that he was sent home at that time and that an appointment was eventually made by the respondent for him to be evaluated by Dr. Carson. The claimant has subsequently been evaluated by several physicians. The claimant has filed this claim, contending that he sustained a compensable back injury and that he is entitled to payment of temporary total disability benefits beginning April 28, 2000 through a date yet to be determined, payment of medical benefits, permanent partial disability benefits based upon a 7% impairment rating, and a controverted attorney's fee.
This claim appears to turn primarily on a credibility determination. In finding that the claimant has failed to establish that he sustained a back injury on April 26, 2000, as he asserts, the Administrative Law Judge apparently relied to a significant degree on two letters prepared by Dr. Hale, which contradict the claimant's hearing testimony and indicate that the claimant provided a history of his back problems starting on April 4, 2000, and not on April 26, 2000, as the claimant asserted at the hearing.
When confronted on cross-examination at the hearing with a copy of one of Dr. Hale's letters stating that the claimant had provided Dr. Hale a history that his condition started on April 4, 2000, the claimant testified that he never said there was anything wrong with his lower leg, and as far as April 4 goes, he did not know what Dr. Hale was talking about. See transcript p. 50. When confronted with this same letter shortly thereafter, the claimant advised the respondents' attorney that he intended to make an appointment with Dr. Hale the week after the hearing held on April 30, 2001 to find out where Dr. Hale got his information. The claimant disagreed with the statement in Dr. Hale's letter indicating that his condition started on April 4, 2000, and the claimant indicated that he was not having a problem beginning on April 4, 2000. The claimant testified that he knew of the letter, but that he did not remember having previously read that Dr. Hale had indicated that his condition started on April 4, 2000. See transcript p. 51.
The claimant has in fact attached to his brief on appeal to the Full Commission a letter from Dr. Hale dated June 18, 2001 addressed to the claimant's attorney's law firm, which states in its entirety:
I SENT A LETTER TO YOU DATED JANUARY 15, 2001. THAT LETTER INCORRECTLY LISTED, IN PARAGRAPH TWO, THAT THE CONDITION THAT MR. ROOT CAME IN TO SEE ME FOR STARTED ON APRIL 4, 2000. THAT DATE SHOULD HAVE BEEN APRIL 26, 2000.
IT WAS ENTIRELY MY ERROR THAT THE WRONG DATE WAS LISTED. I AM INCLUDING A COPY OF THE INFORMATION SHEET MR. ROOT FILLED OUT ON APRIL 27, THE DATE OF HIS APPOINTMENT. AS YOU CAN SEE, THE DATE LISTED AS THE BEGINNING OF THE CONDITION WAS APRIL 26, 2000.
PLEASE FEEL FREE TO CALL ME IF THERE IS ANY FURTHER INFORMATION I CAN CONTRIBUTE.
The claimant's brief also has attached a copy of the handwritten history prepared on April 27, 2000 which states that the condition which was the reason for his visit began on April 26, 2000. The claimant's brief requests that the Full Commission consider this evidence on appeal, and the respondents' attorney has filed a motion to strike the two documents attached to the claimant's brief.
The Commission has broad discretion with reference to admission of evidence, and the Supreme Court will not reverse that decision absent a showing of abuse of that discretion. Clark v. Peabody Testing Serv., 265 Ark. 489, 579 S.W.2d 360 (1979); W. W. C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996); Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987); Southwest Pipe Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984). Ark. Code Ann. § 11-9-705(c)(1)(A) (Repl. 1996) provides that all evidence shall be presented by each party at the initial hearing and that additional evidence shall be allowed only at the discretion of the Commission. In the exercise of this discretion, we must consider whether the claimant has proven that the additional evidence is relevant, that it is not cumulative, that it would change the result, and that the claimant exercised diligence in obtaining and seeking to introduce the evidence.Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).
In the present case, it is clear that the documents attached to the claimant's brief on appeal are certainly relevant to both the Administrative Law Judge's credibility determination in this case and to the issue as to exactly when the claimant's current back condition began. Clearly, the evidence is not cumulative, since the information Dr. Hale provided in his June 18, 2001 letter is diametrically opposed to the information which Dr. Hale has previously provided to the attorneys in this case, and just as clearly, the information which Dr. Hale provided in his June 18, 2001 letter could change the result in this case, since the Administrative Law Judge's finding in denying benefits appears to be based, at least in part, on the misinformation which Dr. Hale has previously provided to the attorneys.
On the more difficult issue as to whether or not the claimant was diligent in procuring the additional information contained in Dr. Hale's June 18, 2001 letter, we note that Dr. Hale's prior misinformation was previously provided to the attorneys in this case in letters dated January 15, 2001 and February 28, 2001, i.e., long before the date of the hearing in this case. On the other hand, we also note that Dr. Hale's erroneous letters in the record were prepared after the prehearing conference held in this case on November 21, 2000. We also fail to see any reference to the January 15, 2001 and February 28, 2001 letters in the respondents' contentions made to the Administrative Law Judge at the start of the hearing. In fact, no reference was made to the potential significance of the erroneous information in these letters until the claimant's cross-examination at the hearing, and as far as we can tell, neither the claimant or his attorney were aware of the potential significance of the misinformation in the letters provided on January 15, 2001 and February 28, 2001 until the respondents' cross-examination of the claimant late in the hearing held on April 30, 2001. At that time, as discussed, the claimant indicated that he would make an appointment with Dr. Hale to find out where Dr. Hale got his information. Moreover, we are persuaded by the claimant's testimony on pages 50 and 51 of the hearing transcript that the claimant himself was not aware of the misinformation contained in the letters sent from Dr. Hale to the claimant's attorney and to the respondents' attorney prior to being questioned by the respondents' attorney late in the hearing held on April 30, 2001.
In determining the degree of diligence required of the claimant in obtaining the additional evidence at issue in this case, we are not unmindful of the policy consideration enacted by the General Assembly in Ark. Code Ann. § 11-9-713 providing that the Commission may, at any time, correct any clerical error in any compensation order or award. In the present case, the claimant does not seek to correct a clerical error in a compensation order or award. On the other hand, the claimant is also not simply seeking "a second bite at the apple" by attempting to bolster the record with additional medical opinions or diagnostic test results. Instead, the claimant merely seeks for the Commission to consider Dr. Hale's self-admitted mistake of fact in his prior correspondence provided to the attorneys and the Commission in this case.
For future reference, we point out that the better course of action in this case would have been for the claimant's attorney to specifically request that the Administrative Law Judge hold the record open after the hearing in order for the claimant to obtain a clarifying statement from Dr. Hale when the claimant discovered Dr. Hale's relevant error during cross-examination. In fact, we note that the Administrative Law Judge already agreed to hold the hearing record open in this case in order for the respondents to obtain and present the deposition of Ronald Skaggs, which was not taken until nine days after the hearing held on April 30, 2001.
In the future, if any party intends to obtain a clarifying statement from a physician of record regarding an alleged mistake of fact in the doctor's records discovered during a hearing, we would expect that party to specifically request the Administrative Law Judge to hold the record open for a reasonable time until a clarifying statement can be obtained, to avoid the type of piecemeal litigation which has unfortunately occurred in this case. However, in this one instance, we find that the claimant was sufficiently diligent under the circumstances in advising the Commission of his intent to obtain a clarifying statement and in presenting that clarifying statement to the Commission regarding what Dr. Hale has now admitted was an obvious mistake of fact on his part in his prior correspondence in this case.
Therefore, for the reasons discussed herein, we are admitting into evidence the two documents attached to the claimant's brief on appeal (Exhibit A and Dr. Hale's June 18, 2001 letter). We remand this case to permit the respondents an opportunity to present any additional evidence which the respondents may deem relevant and appropriate in response, and for the Administrative Law Judge to make additional findings based on whatever supplemental record is developed on remand.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
I respectfully dissent from the majority opinion finding that the evidence attached to the claimant's brief should be admitted. In my opinion, the respondents' Motion should be granted and the evidence should not be considered.
The Commission has broad discretion with reference to admission of evidence, and the Supreme Court will not reverse that decision, absent a showing of abuse of that discretion. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979); W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996); Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987); Southwest Pipe and Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984). Ark. Code Ann. § 11-9-705(c)(1)(A) (Repl. 1996) provides that all evidence shall be presented by each party at the initial hearing and that initial evidence shall be allowed only at the discretion of the Commission. In the exercise of this discretion, we must consider whether the claimant has proven that the additional evidence is relevant, that it is not cumulative, that it would change the results, and that the claimant exercised diligence in obtaining and seeking to introduce the evidence.Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).
Therefore, I find that the respondents' Motion to Strike should be granted. Accordingly, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner