Burkett v. Exxon Tiger Mart, Inc.

304 S.W.3d 2, 2009 Ark. App. 93, 2009 Ark. App. LEXIS 373
CourtCourt of Appeals of Arkansas
DecidedFebruary 18, 2009
DocketCA 08-741
StatusPublished
Cited by9 cases

This text of 304 S.W.3d 2 (Burkett v. Exxon Tiger Mart, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkett v. Exxon Tiger Mart, Inc., 304 S.W.3d 2, 2009 Ark. App. 93, 2009 Ark. App. LEXIS 373 (Ark. Ct. App. 2009).

Opinion

LARRY D. VAUGHT, Chief Judge.

| Appellant Lynn Burkett appeals the decision of the Workers’ Compensation Commission vacating the opinion of the Administrative Law Judge that ordered an independent medical examination (IME) and reserved the issues of compensability and additional benefits. The Commission further found that Burkett failed to meet her burden of proving that reflex sympathetic dystrophy (RSD) was a compensable consequence of her compensable right-hand injury. Burkett raises four issues on appeal: (1) the Commission erred in determining that the ALJ had no authority to order an IME; (2) the Commission erred in determining issues that had been reserved by the ALJ; (3) the Commission erred in failing to make findings of fact before it denied the claim; and (4) the Commission’s denial of the claim is not supported by substantial evidence. We affirm in part and reverse |2and remand in part.

On July 15, 2006, Burkett, an employee of appellee Exxon Tiger Mart, Inc., was asked by her assistant manager to change the gas prices on the sign in front of the station. Burkett used a flexible extension rod with a suction cup on the end to remove and replace the numbers. While performing this task, one of the numbers (consisting of thin plastic, measuring one foot by one-and-a-half feet, and weighing approximately two ounces) fell twenty to twenty-five feet and struck the top of her right hand. Burkett immediately felt pain, reported the incident to Tiger Mart, and sought medical treatment. This incident was accepted as compensable by Tiger Mart and initial benefits were paid to Burkett.

At the emergency room, Burkett was diagnosed with a right-hand contusion. Four days later, on referral from the emergency room, Burkett was seen by Dr. Robert May. Dr. May noted a lack of objective findings of an injury to Burkett’s right hand; however, he diagnosed RSD based on her complaints of pain. At the request of Tiger Mart, Burkett was seen by Dr. David Rhodes on August 10, 2006. He recommended a triple-phase bone scan, the results of which failed to support the presence of RSD. On August 21, 2006, Dr. Rhodes’s physical examination of Burkett failed to demonstrate objective findings supporting RSD.

In late August 2006, Burkett was seen by Dr. Michael Westbrook, who noted swelling in her right hand and stated that tendinitis or carpal tunnel syndrome were possible ^diagnoses. Thereafter, Burkett returned to the emergency room for treatment, where the physician noted swelling and redness in her right hand. He suspected cellulitis. Burkett returned to Dr. Westbrook with continued complaints, and he noted that her right hand was warm and swollen. He diagnosed cellulitis and possible RSD. He referred her to Dr. James E. Kelly, who diagnosed Burkett with RSD and recommended “fairly aggressive treatment.”

When Tiger Mart denied the RSD treatment recommended by Dr. Kelly, Burkett filed a claim with the Commission. She sought the determination that her RSD was a compensable consequence of her compensable injury and that she was entitled to additional benefits. After a hearing on these issues, the ALJ issued an opinion wherein he stated:

I am concerned about the discrepancies in the objective findings that formed the basis for the diagnosis of RSD.... After consideration of all the evidence presented, it is my opinion 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.

After ordering an IME, the ALJ reserved the issues of compensability and additional benefits.

Tiger Mart appealed, and the Commission reversed the ALJ’s opinion. The Commission found that while the ALJ had the authority to order an IME under Arkansas Code Annotated section 11 — 9— 511(a), it was inappropriate to exercise that authority once the parties actually presented their case. The Commission vacated the ALJ’s order for the IME and further found that “the claimant has failed to prove by a preponderance of the evidence that she has developed [RSD] for which she is entitled to additional medical and indemnity benefits.” Burkett timely appealed from the Commission’s decision.

|4The first point raised by Burkett is that the Commission erred in determining that the ALJ had no authority to order an IME. She argues that authority to order an IME was granted to the ALJ pursuant to Arkansas Code Annotated sections 11-9-511(a) (Repl.2002) and 11-9-811 (Repl. 2002). 1 The ALJ did not cite either section 11-9-511 or 11-9-811 as authority for ordering the IME. The Commission only referred to section 11-9-511 in its decision. It acknowledged that section 11-9-511(a) authorized the Commission to direct a claimant to submit to a physical examination. However, it found that it was inappropriate to exercise that authority after the parties had already litigated their case.

We do not interfere with the actions of the Commission unless we find that it has acted without or in excess of its authority. Gencorp Polymer Prod. v. Landers, 36 Ark.App. 190, 820 S.W.2d 475 (1991). To determine whether the Commission erred in finding that Rthe ALJ exceeded his authority, we must interpret the applicable workers’ compensation statutes. We review issues of statutory construction de novo, as it is for this court to decide what a statute means. Lewis v. Auto Parts & Tire Co., Inc., 104 Ark.App. 230, 290 S.W.3d 37 (2008).

The plain language of sections 11-9-511(a) and 11-9-811 does not authorize the Commission to, sua sponte, order an IME after the parties have litigated com-pensability and additional benefits. These statutes do not give the Commission authority to reserve making determinations on compensability and additional benefits when those were the only issues litigated by the parties. 2 As such, we hold that the Commission did not err in finding that the ALJ exceeded his authority when he ordered an IME.

We further hold that the Commission, in vacating the law judge’s IME order, properly relied upon our holding in Landers. There, the ALJ and Commission reserved the issue of the claimant’s entitlement to temporary indemnity benefits, finding that the record was not sufficiently complete to allow a determination that would be fair and just to all parties concerned. There, we stated:

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).

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Bluebook (online)
304 S.W.3d 2, 2009 Ark. App. 93, 2009 Ark. App. LEXIS 373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkett-v-exxon-tiger-mart-inc-arkctapp-2009.