Opinion
CLAIM NO. E807346
OPINION FILED MARCH 13, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SHANNON MUSE CARROLL, Attorney at Law, Hot Springs, Arkansas.
Respondents No. 1 represented by SAM ESTIS, Sterlington, Louisiana.
Respondents No. 2 represented by the HONORABLE NORWOOD PHILLIPS, Attorney at Law, El Dorado, Arkansas.
ORDER
The Full Commission, on its own motion, finds that the opinion and order filed by the Full Commission on March 2, 2000 contains a clerical error. We further find that we are authorized to correct clerical errors at any time under Ark. Code Ann. § 11-9-713(d) (Repl. 1996) and that this is a proper case for exercise of that authority.
On March 2, 2000, this Commission filed an opinion and order in this case. However, that opinion and order failed to include the following concurring and dissenting opinion filed by Commissioner Wilson:
Commissioner Wilson concurs and dissents.
CONCURRING AND DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant proved by a preponderance of the evidence that he sustained a specific incident injury on June 20, 1998, for which he is entitled to related medical benefits and temporary total disability benefits from June 23, 1998 through November 8, 1998. I concur with the finding that respondent no. 2 is entitled to recover benefits paid to claimant from respondent no. 1, pursuant to Ark. Code Ann. Section 11-9-402.
It is my opinion that Claimant did not prove his injury by a preponderance of the evidence and that he is not entitled to any benefits arising out of the Workers' Compensation statutes. Because I base this decision on the absence of a causal connection between Claimant's alleged on-the-job injury and the injury described and treated by Dr. Turbeville, and not on the absence of objective findings, I do not reach the constitutional issue raised by Claimant. Furthermore, Claimant failed to raise his constitutional objection at the hearing, and thus it is not properly before us now.
All legal and factual issues should be developed at the hearing before the administrative law judge. See Ester v. National Home Centers, Inc., 61 Ark. App. 91, ___ S.W.2d ___ (1998) ( citing American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983); Walker v. J J Pest Control, 6 Ark. App. 171, 639 S.W.2d 748 (1982)). Because Claimant did not raise this issue before the administrative law judge, it is improper for the Full Commission to address this new issue for the first time on appeal. See Lawrence v. Sunbeam Outdoor Products, Full Workers' Compensation Commission, June 3, 1998 ( E704127); Gary R. Toombs v. Griffin Petroleum, Full Workers' Compensation Commission, April 13, 1998 ( E616161);Dorothy Ponder v. Patterson Cleaners, Inc., Full Workers' Compensation Commission, March 10, 1997 ( E514528).
I agree that there is objective evidence that Claimant had some type of difficulty with his knee in August and in October of 1998. What is not certain and cannot be determined from the record is that a causal connection exists between the swelling and effusion identified and the accident which Claimant alleges to have occurred. The evidence purported to establish a causal connection includes Claimant's testimony that he was struck in the knee with a wrecking bar, the testimony of his relatives, and the medical evidence. The medical evidence contains only one document dated prior to August 12, 1998, even though the alleged injury occurred on June 20, 1998. This single document is a receipt from the Murfreesboro Drug store, dated June 26, 1998, for Lodine XL, for Claimant, prescribed by Dr. Turbeville. Lodine XL is indicated for the management of the signs and symptoms of osteoarthritis and of rheumatoid arthritis, according to the Physician's Desk Reference 2000, 54th Edition. There is also a bill dated July 9, 1998, for something which occurred on June 24, 1998 for $35.00. Unfortunately for Claimant, neither document bears any indication of its relationship to Claimant's employment, his alleged injury, or anything else to do with this case.
At this point I am left to determine whether a causal connection exists based upon Claimant's testimony and the testimony of Grady Stone and Randall Woodall. Grady Stone is Claimant's brother and co-employee who stated that Claimant was limping and told him that his knee was hurt when a bar flipped on it. Randall Woodall is Claimant's brother-in-law, married to Claimant's sister for fourteen years, and friends since childhood. Woodall did not testify as to Claimant's injury.
I am compelled to find that Claimant did not prove a causal connection where he produced no evidence of any doctor's care related to the injury prior to August 12, 1998, and where the only corroboration was by his brother. The absence of any medical evidence of the injury or treatment between the date of the alleged injury and August 12, 1998, the date of the first documented visit about the alleged injury, is an insurmountable barrier to finding a connection between the injury and the findings of the August and October doctor's findings. The lapse between June and August is not cured by Claimant's entry of a prescription and a bill which are not linked or explained in any way. It is curious, at best, that the records related to the prescription and the bill are not in evidence.
Because I do not find that the record presented by Claimant is sufficient to support a finding of causal connection necessary to his claim, I do not find it necessary to reach the question of Respondent No. 1's proffered testimony, or the constitutional question concerning objective findings. I would affirm the decision of the Administrative Law Judge.
______________________________ MIKE WILSON, Commissioner
The March 2, 2000, opinion and order is hereby amended only in this regard. In all other respects, the said opinion and order shall remain the same and shall not be otherwise affected.
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ PAT WEST HUMPHREY, Commissioner
________________________________ MIKE WILSON, Commissioner