Opinion
CLAIM NO. E900976
OPINION FILED MAY 24, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JOHN BARTTELT, Attorney at Law, Jonesboro, Arkansas.
Respondent represented by the HONORABLE WALTER A. MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Vacated and remanded.
ORDER
The claimant appeals an opinion and order filed by the administrative law judge on December 15, 2000. In that opinion and order, the administrative law judge found that the claimant has failed to establish by a preponderance of the evidence that she sustained a compensable injury on January 8, 1999 supported by objective findings. After conducting a de novo review of the entire record, and for the reasons discussed herein, we remand this case to the administrative law judge to settle the record and for more adequate findings thereafter.
Certain facts in this case are not in dispute. The claimant previously had back surgery in 1994 which was successful. The claimant slipped on ice in the course of her employment with the respondent on January 8, 1999, and developed persistent back and right leg pain thereafter. The respondent paid the claimant temporary total disability benefits and medical benefits until October of 1999, then denied further benefits and ultimately claimed at the start of the hearing in this case that there were no objective findings of an injury sustained on January 8, 1999. As noted above, the administrative law judge found that there are no objective findings of a new injury in the record before the Commission.
In conducting our de novo review of the medical record, to determine whether or not the claimant's injury is supported by objective findings, we note that the index to Joint Exhibit No. 1 indicates that this exhibit is supposed to contain various medical reports for the period from January 19, 1999 through February 1, 1999 (Jt. Ex. 1, pages 21-25 listed after page 27). However, our review of Joint Exhibit No. 1 indicates that these medical reports are not in the copy of the medical record which is contained with the transcript of the hearing conducted on October 5, 2000. We are unable to ascertain whether these pages of Joint Exhibit No. 1 were left out intentionally or inadvertently, and we therefore remand this case to the administrative law judge to settle the record in this regard. In taking this course of action, we note that these reports were generated shortly after the incident on January 8, 1999, and we note that these medical reports could very likely contain clinical observations (muscle spasms, bruises, etc.) that the courts have found do constitute objective findings of a new injury consistent with the claimant's fall.
In addition, we point out that a physical examination carried out on January 19, 1999 by the claimant's initial treating physician resulted in a report which includes a notation of the term "spasm", (Jt. Ex. 1, page 30). We point out for the benefit of the administrative law judge and the parties on remand that the Arkansas courts have held that muscle spasms are objective findings within the meaning of Act 796 of 1993. In addition, we also note that Dr. Barrett-Tuck indicated in one medical report that the claimant's post-myelogram CT indicates an effacement of a nerve root on the right at the L3-4 level of the claimant's lumbar spine. We note that this objective finding also appears to be consistent with Dr. Hackbarth's discussion in his deposition in which he said that the claimant's pain going down into her right leg was probably due to nerve root irritation in the lumbar spine. We note that the administrative law judge's analysis in this case does not reference the notation of "spasm" cited above, and does not discuss the potential relevance of Dr. Barrett-Tuck's indication that the claimant is experiencing an effacement of a nerve root on the right at the L3-4 level, as these two objective findings may relate to the compensability issue presented in this case.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we remand this case to the administrative law judge to settle the record, and for more adequate findings thereafter. For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715(b)(1) (Repl. 1996). See, Belcher v. Holiday Inn, 50 Ark. App. 148, 900 S.W.2d 215 (1995); Crow v. Weyerhauser Co., 41 Ark. App. 225, 852 S.W.2d 334 (1993); Harte v. City of Rogers, Full Workers' Compensation Commission, Op. filed November 29, 2000 (W.C.C. No. E906998).
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ MIKE WILSON, Commissioner
________________________________ SHELBY W. TURNER, Commissioner