CLAIM NO. E219418
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JULY 11, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE JAMES W. TILLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part, vacated and set aside in part.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on August 15, 1995. In that opinion and order, the administrative law judge found that the claimant was not entitled to additional temporary total disability benefits, that the claimant failed to show by the preponderance of the evidence that there was any objective evidence to support a permanent impairment, and that the claimant failed to demonstrate that a repetitive activity evaluation for the purpose of establishing an impairment rating was reasonable and necessary.
[10] Dr. Smelz also testified by deposition to the same effect:I can no longer find any objective bases as the etiology of her pain. I do feel however, that she should not return to her previous type of employment; indeed I feel that any return to the repetitive stress type activity involving her upper extremities will lead to recurrence of the significant tendinitis and myofascial syndrome she suffered initially.
Q: Without going specifically into each individual examination, would you give me a broad brush overview of how this lady progressed under your care?
A: My impression is that she came in with what looked like carpal tunnel syndrome according to the physical exam and what looked like tendinitis and myofascial pain and epicondylitis. I think that these gradually resolved over time. According to my examination, her complaints did not change.
When I last saw her, I did not know how to address these complaints because I couldn’t find any findings on physical examination.
Q: Were there any objective signs of injury or anatomical disability when you last saw her on August 30, 1993?
A: No.
Q: There were subjective complaints of pain?
A: Right.
Q: From an objective standpoint, had she reached maximum medical improvement in terms of anatomical findings?
A: From an objective standpoint, yes.
[11] Prior to the August 30, 1993, visit to Dr. Smelz, the claimant had seen Dr. Moffett on June 9, 1993, at which time he provided the same objective findings:[12] The claimant testified that she is unable to work because of the pain that she is still experiencing; however, the testimony of Dr. Smelz indicates that she has been unable to find a cause for the severe complaints described by the claimant. In addition, claimant testified that even though she is unable to work, she stays at home and cares for three children, one of whom she had on January 4, 1994. She indicated that in this capacity, she frequently carries around her youngest child, a nineteen pound baby. Despite Dr. Smelz’s indication that she could, the claimant also testified that she has not looked for or formally applied for a job since November 1992. Therefore, based on the evidence, there is no indication by anyone other than the claimant herself that she is unable to work or seek employment. [13] The claimant also seeks a repetitive activity evaluation to determine a permanent disability rating. However, the medical evidence presented simply does not indicate that this type of evaluation is reasonable and necessary. Dr. Smelz indicated the following in her deposition:Cynthia is without specific complaints, other than the same complaints that she has had in the past, which are shoulder and upper arm pain. She has no symptoms compatible with carpal tunnel syndrome, although she does have some pain complaints. She recently told me she quit smoking. I think this will improve any vasculitis that she has. I have talked on the phone with Dr. Smelz and the patient has not been keeping her appointments with Dr. Smelz and some of the things she has been telling me about things Dr. Smelz has said are incorrect. Dr. Smelz and I both agree that the patient is for some reason playing us against each other and since I find no surgical problem, my plan is to return her to Dr. Smelz’s care, as per her request, and not see her unless a surgical problem arises. I will be seeing her in the future on a prn basis.
Q: . . . you have indicated, I believe, that you are unable to state an opinion with respect to the extent of permanent impairment until eight hours of repetitive activity are performed because that is what is required by the AMA guides; is that right?
A: No, not in specifics, it is not. First of all, she’s complaining of ongoing pain now. I can’t find the etiology of that pain, so I can’t talk about impairment that causes pain without repetitive activity. I don’t know what’s causing her pain. So I can’t give an impairment rating. I don’t even know what’s there.
Q: Okay.
[14] The claimant seems to argue that if a repetitive activity evaluation were done, it would indicate that she should then refrain from work that involves repetitive activities:A: If you are asking me for an impairment rating of what I did find initially, then I’ll say I can’t give you an impairment rating for that without eight hours of activity.
Q: So have you asked her or directed her to perform eight hours of activity for the purpose of ultimately making a determination with respect to the extent of permanent impairment?
A: I don’t think that that’s the only problem. She’s complaining of ongoing pain without repetitive activity. I can do the impairment rating for repetitive activity if that were the problem, but it doesn’t seem to be the problem now.
Q: Doctor, if this lady was to engage in eight hours of repetitive activity at your direction and then you were to make the same visible findings that you made on July the 19th, would you at that time be directing her to avoid further involvement in repetitive activities from a working standpoint?
A: Yes.
[15] However, Dr. Smelz’s opinion in this regard is the same opinion that she gave without the repetitive activity evaluation. She testified in her prior deposition testimony to respondent’s counsel that she would not want the claimant to engage in repetitive activities:Q: What type of activities could she engage in to be gainfully employed based on your objective findings?
A: Anything that didn’t require repetitive motion and constant lifting with repetitive motion. I’m talking about a cyclic type of activity.
Q: You would not want her doing those type things?
A: I would not want her doing those type things.
Q: Would there be a lifting restriction — assuming it’s not repetitive, but just a straight lifting restriction of any type?
A: No.
[16] Based on the foregoing, we find that the claimant is not entitled to a repetitive activity evaluation at the respondent’s expense. [17] Despite our finding that the claimant is not entitled to a repetitive activity evaluation, we also find that the issue of permanent impairment was not an issue under consideration, and accordingly, set aside that portion of the administrative law judge’s opinion. The decision of an administrative law judge which is based upon a finding of fact not submitted or developed by either party denies the losing party the right to be heard on that issue. Arkansas Louisiana Gas Company v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983). Therefore, we vacate and set aside the administrative law judge’s finding of no permanent impairment. [18] Therefore, we find that the claimant reached the end of her healing period on August 30, 1993, that all appropriate temporary total disability benefits have been paid, and that the claimant is not entitled to a repetitive activity evaluation at the respondent’s expense. We further find that since respondent has paid temporary total disability benefits up to March 8, 1994, they have overpaid the claimant’s benefits and may be entitled to a credit in the event the claimant seeks additional disability benefits in the future. This issue has been reserved by the parties. [19] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the administrative law judge’s findings that the claimant is not entitled to additional temporary total disability compensation and that she is not entitled to a repetitive activity evaluation must be affirmed. With respect to the administrative law judge’s finding of no permanent impairment, the issue was not raised by the parties. Consequently, we find that the administrative law judge’s decision in this regard must be vacated and set aside. [20] IT IS SO ORDERED.JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[21] Commissioner Humphrey concurs in part and dissents in part.[22] CONCURRING AND DISSENTING OPINION
[23] I concur with that portion of the majority opinion vacating and setting aside the Administrative Law Judge’s finding that claimant failed to demonstrate any objective evidence of a permanent impairment. Claimant contended that she was entitled to additional temporary total disability benefits and continuing medical treatment in the form of a permanent impairment evaluation. Actual benefits for permanent impairment were not pursued, nor was a ruling as to permanency. Furthermore, claimant specifically reserved the “right to pursue any other benefits to which claimant might be entitled in the future.” I therefore agree with the majority’s reliance on Arkansas Louisiana Gas Co.v. Groom, 10 Ark. App. 92, 661 S.W.2d 433 (1983) in vacating and setting aside the Administrative Law Judge’s findings as to permanent impairment.
[26] With regard to claimant’s contention that she is entitled to a permanent impairment evaluation, I note the statutory duty prescribed by Ark. Code Ann. § 11-9-811 (1987):if during the period while the body is healing,
the employee is unable to perform remunerative tasks with reasonable consistency and without pain and discomfort, his temporary disability is deemed total. (Emphasis mine).
[27] The medical evidence indicates that claimant may no longer be able to engage in certain kinds of work activity due to her compensable injury. By denying claimant the opportunity to receive additional medical benefits in the form of a repetitive motion/permanent impairment evaluation, the Commission has, in my opinion, failed to adequately protect claimant’s rights in the spirit contemplated by the foregoing statute. [28] For the reasons set forth above, I concur in part and respectfully dissent in part. [29] PAT WEST HUMPHREY, CommissionerUpon its own initiative at any time where compensation payments are being made without an award the commission may and in any case where the right to compensation has been controverted or where payments of compensation have been suspended, or where an employer seeks to suspend payments made under an award, or on application of an interested party, the commission shall make such investigations, cause such medical examinations to be made, hold such hearings, and take such further actions as the commission deems proper for the protection of the rights of all parties.