Wooten v. Arkansas Aluminum Window & Door, Inc.

706 S.W.2d 198, 17 Ark. App. 209, 1986 Ark. App. LEXIS 2122

• Court: Court of Appeals of Arkansas
• Decided: March 26, 1986
• Docket: CA 85-448
• Status: Published

Opinions

Tom Glaze, Judge.

John Wooten appeals from a Workers’ Compensation Commission decision which affirmed the administrative law judge’s finding that appellant was not entitled to temporary total disability benefits, but reversed a finding that the record was not sufficiently developed to determine the extent of permanent disability. For reversal, appellant contends that the Commission acted without power, or in excess of its powers, in ruling that the law judge could not hold in abeyance the issue of permanent partial disability and deciding appellant failed to prove any permanent disability. We remand.

Appellant sustained a compensable back injury on April 4, 1984. He contended he was entitled to both temporary total and permanent partial disability benefits.¹ Appellant was the only witness called at the hearing, although letters written by two medical doctors and a chiropractor were introduced. After several months of treatment, Dr. Carpenter, the chiropractor, gave appellant a permanent impairment rating of 25% to the body as a whole. In July 1984, Dr. Saer, an orthopedist, performed a CT scan which showed a mild bulge at L5-S1. Dr. Saer reported that appellant did not want to undergo a myelogram at that time. On December 27,1984, appellee submitted to the administrative law judge a letter from Dr. Wilson, an orthopedist, in which he suggested appellant undergo a myelogram. Dr. Wilson also stated that “[t]he medical findings that are present indicate a herniated nucleus pulposus. . . .” Appellant testified that he was afraid to undergo a myelogram because he did not like needles. However, he stated that “if it came down to it, I would take a myelogram if I get worse.”

At the hearing before the law judge on October 11, 1984, appellee reserved the right to take depositions of doctors Saer and Carpenter, and the law judge took the case under advisement pending the taking of those depositions. On January 2,1985, the law judge issued his opinion denying temporary total benefits but reserving a finding on the permanent disability issue because “the degree of [appellant’s] permanent partial impairment could not be determined at this time.” The law judge, noting appellant’s remark that he would take a myelogram, stated that it is only reasonable to assume that if the appellant, after having a myelogram, is diagnosed as having a herniated nucleus pulposus, either with or without surgery, appellant would have an anatomical rating of permanent partial impairment.

Appellant appealed the law judge’s decision and filed with the Commission a motion to submit new evidence, including certain medical depositions. The Commission denied the motion, upheld the law judge’s denial of temporary total benefits and found the appellant had failed to meet his burden of proof on the issue of permanent partial disability.

In support of its opinion, the Commission cited Hill v. White-Rodgers, 10 Ark. App. 402, 665 S.W.2d 292 (1984), and Hay good v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982), which list the prerequisites for remands by the Commission for the taking of new evidence. Those cases, however, involved requests by appellants to reopen their cases to submit additional evidence after the law judges decided the disability issues. Here, the law judge, after denying temporary disability benefits to appellant, expressly reserved his decision on the permanent disability claim. While the Commission found fault with the law judge in withholding his decision on the permanency issue until that issue was fully developed, we are unaware of any reason why he could not do so. Clearly, the law judge, under Ark. Stat. Ann. § 81-1327(c) (Supp. 1985), had discretion to order further hearings for the purpose of introducing additional evidence even though that same provision directs that each party must present all evidence at the initial hearing. Thus, if the law judge can order additional evidentiary hearings, a fortiori, the judge necessarily should have the power and discretion to reserve his or her decision on a related issue which might be affected by any additional evidence.

We can appreciate the Commission’s interest in encouraging a prompt resolution of pending claims, but the law judge, under the circumstances here, had the discretion to reserve his ruling on the permanent disability issue. Until the law judge hears and decides that issue, the Commission is in no position to conduct a de novo review regarding appellant’s permanent disability claim. Therefore, we remand this cause with direction to permit the law judge to hear and decide that issue.

709 S.W.2d 412

Remanded.

Cracraft, C.J., and Cooper, J., agree.

Rehearing Denied May 21, 1986

Per Curiam.

Petition for Rehearing is denied.

Mayfield, J., dissents. Cloninger, J., and Wright, Sp. J., not participating.

1 The administrative law judge found that appellant was not entitled to temporary total disability benefits because he continued to draw his full salary during his healing period. That finding was affirmed by the Commission, and it is not in issue here.