CLAIM NO. E800135
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 5, 2001
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
In October 1999, the Administrative Law Judge issued an opinion finding that the claimant failed to prove by a preponderance of the evidence that she was entitled to permanent partial disability benefits because the range of motion tests upon which her impairment ratings were based were not objective findings. In an unpublished opinion, the Full Commission affirmed and adopted the decision of the Administrative Law Judge. Subsequent to this decision, the Arkansas Court of Appeals found in Hayesv. Wal-Mart, 71 Ark. App. 207, 29 S.W.3d 751 (2000), that passive range of motion evaluations can constitute objective findings. The Court of Appeals, therefore, reversed and remanded the present case to the Full Commission with instructions to reconsider our holding in light ofHayes. The Full Commission then remanded this matter to the Administrative Law Judge for additional proceedings.
In an opinion filed in May 2001, after noting that counsel for the respondent had requested a new hearing, that the claimant’s counsel had replied that no additional testimony or evidence needed to be presented, and that the counsel for the respondent did not respond, the Administrative Law Judge found that all issues were presently ripe and that all testimony and evidence regarding the issues presently before the Commission were properly presented at the original hearing in September 1999. The Administrative Law Judge further found that the range of motion tests utilized by the claimant’s physician to arrive at the claimant’s permanent anatomical impairment rating were objective, passive range of motion tests, and that the claimant had proven by a preponderance of the evidence that she sustained a compensable permanent partial disability of 5% to the elbow and 7% to the shoulder.
The respondents have appealed from this decision and assert that the claimant failed to establish that the impairment rating assigned by her physician was supported by objective and measurable findings and, therefore, the Administrative Law Judge’s opinion in this regard should be reversed. The respondents also assert that the Administrative Law Judge’s determination that a new hearing was not necessary was a violation of respondents’ constitutional rights to due process. Based upon our de novo review of the evidence, we find that the claimant proved by a preponderance of the evidence that her impairment rating was based upon passive range of motion tests, and thus proved by a preponderance of the evidence that she is entitled to permanent partial disability ratings of 5% to the elbow and 7% to the shoulder. We also find that the respondents have failed to establish any deprivation of constitutional rights to due process.
I. Impairment Ratings
In Hayes, supra, the Court found that passive range of motion evaluations performed by a physician that are not under the voluntary control of a patient can constitute objective findings under Ark. Code Ann. § 11-9-102(16)(A)(1). In Hayes, the testimony reflected that the test performed was not one in which the limb was actively moved by the subject, but instead was a test in which the limb was passively moved by the examiner. The claimant in that case testified specifically:
Dr. Meredith did not instruct me to move my arm . . . What the doctor did with the nurse present is he put his hand under my elbow towards the forearm and guided my hand upward with my arm extended and lifted it with my elbow up and then put it back down and he raised it to the level that he had it raised and went forward and he kept going forward until he stopped and then he did the same thing going to the back. . . . I did not control my arm when he was doing the test. He had my arm in his hand. At all times during the test Dr. Meredith was manipulating my arm and shoulder and I was not in control of it. . . . When the doctor was performing the test I did not have voluntary control of my arm. The doctor did not ask me to move my arm during the test and I could not have moved it forward to the extent that he moved it.
Further, the claimant’s physician in Hayes stated in a letter that the range of motion studies that he performed could be objectively and consistently measured.
In the present case, the claimant described her examination for the purpose of impairment rating as follows:
He got my arm and he’d pull it up. He got a-hold of it and he rotated it in each direction to see how far it would go. And he did this. And he would pull it, you know, to where I, as far as I could stand it, and then, when I started hollering, well, he’d stop pulling on it. But — and he’d move the wrist to see how far that moved. And he’d straighten out the arm to see how far the arm would straighten out, because the arm doesn’t straighten out totally. And he’d pull down on it and turn it in each direction and do that.
The claimant’s attorney asked her whether her physician would stop immediately when she would holler. The claimant responded that he would not, that he kept pulling. Her attorney asked, “Did Dr. Johnson continue moving your extremity even after you said, `I hurt. It won’t go any further,’ or whatever you said?” The claimant responded, “He just kept pulling on it.”
Dr. Philip Johnson’s report of this examination of the claimant includes the following comments:
She returns today with continued difficulty with her left elbow. She has the same restriction of motion, which she has had all along, which is from 40-135 degrees.
She is also having difficulties with her left shoulder with considerable restriction of motion in all planes. She has limitation of shoulder motion abducting to 60 degrees and flexing to 100 degrees. Together this represents a 12 percent permanent physical impairment based on the AMA Guidelines, pages 43-44, Figure 38 41. This represents an additional impairment to the 5 percent permanent physical impairment she suffered as a result of her elbow injury.
This examination occurred on March 29, 1999. On April 1, 1999, Dr. Johnson wrote:
I response (sic) to your recent letter regarding Mary Dormany’s physical impairment, I have rated her at 5 percent to the elbow based on range of motion of the elbow from 40-130 degrees. The Guidelines for Evaluation of Permanent Impairment, Fourth Edition, AMA, Page 3-40, Figure 32, will explain my rating based on limited motion.
In addition, she has in regard to her restricted motion of her shoulder secondary to adhesive capsulitis, another 7 percent in addition relative to the upper extremity based on the same AMA ratings, Page 3-43, Figure 38.
In summary, Dr. Johnson stated that he used the 4th Edition of the AMAGuides in assessing claimant’s degree of anatomical impairment. In response to an inquiry from claimant’s counsel, Dr. Johnson checked “yes” to the question of whether he used objective data to assign the rating. Moreover, claimant testified that when Dr. Johnson performed range of motion tests, she did not move her arm. Rather, he lifted her arm and rotated it in all directions. If claimant would begin to yell because of pain, Dr. Johnson continued until no further movement was possible. Claimant testified credibly with respect to the range of motion testing Dr. Johnson performed. The Administrative Law Judge, who heard the live testimony and observed the claimant’s demeanor, concluded that the passive range of motion tests done by Dr. Johnson satisfied the objective findings requirement. We agree. Both Dr. Johnson’s reports in the record and the claimant’s testimony support a finding by the preponderance of the evidence that Dr. Johnson’s range of motion testing at issue did not come under the claimant’s voluntary control, so that Dr. Johnson’s impairment ratings at issue are supported by objective and measurable physical findings.
II. Due process.
For purposes of considering the respondents’ due process argument, we have incorporated into the record before the Full Commission the March 19, 2001 letter of Attorney Mike Roberts to Dorothy Jackson, Clerk of the Full Commission, and Attorney Philip Wilson’s March 28, 2001 letter to Dorothy Jackson. Mr. Roberts’ letter, prepared on behalf of the respondents, states in its entirety:
Respondents respectfully request a new hearing so that further findings can be made, pursuant to the decision of the Arkansas Court of Appeals.
Thank you very much for your consideration in this matter.
Mr. Wilson’s letter, prepared on behalf of the claimant, states in its entirety:
My file does not show that the Full Commission has referred the above style (sic) case to Judge McKinney. However, when they do, we are requesting that Judge McKinney simply enter an Amended Opinion based upon the directives of the Court of Appeals and the Full Commission. I know of no additional testimony or evidence that needs to be presented or in Fact would be allowable under the opinion of the Court of Appeals.
Your assistance in this matter is greatly appreciated.
In their primary brief on appeal, the respondents argue in relevant part that the Administrative Law Judge’s denial of the introduction of new evidence based on these letters is a violation of the respondents’ right to due process of law. The respondents argue that when the original hearing was held in this matter, the decision in Hayes v. Wal-MartStores, Inc., supra, had not been passed down. The respondents argue that neither party could have anticipated that they would need to generate evidence to establish whether the range of motion testing performed by Dr. Johnson was active or passive. The respondents argue that without allowing in new evidence, the procedure utilized by the Administrative Law Judge undermined the accuracy of her final determination of fact.
Ark. Code Ann. § 11-9-705(c)(1) (Repl. 1996) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, a party must show (1) that the new evidence is relevant; (2) that it is not cumulative; (3) that it would change the result of the case; (4) and that the party was diligent in presenting the evidence to the Commission. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575
(1960); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).
We find the circumstances presented in the present case somewhat analogous to the circumstances presented in Vicki G. Medley v. Wal-MartStores, Full Workers’ Compensation Commission, Opinion filed February 5, 1997 (W.C.C. E606052). In that case, an Administrative Law Judge presided over a hearing and found that the claimant failed to prove by a preponderance of the evidence that additional medical treatment at issue was reasonable, necessary, and related to a compensable injury. Therefore, the claim was denied and dismissed. On appeal to the Full Commission, the claimant sought to present additional medical reports from an orthopedic specialist which had not been presented at the hearing. The claimant averred that the reports were unavailable at the prior hearing before the Administrative Law Judge. However, the Commission noted that the claimant had failed to proffer the exhibits that she sought to introduce, and she failed to otherwise indicate how the orthopedic medical reports would be relevant to the cause of her injuries. Therefore, the Commission found in part that the claimant had failed to show that inclusion of the medical reports at issue would lead to a different outcome in her case.
In the present case, the respondents appear to acknowledge that the primary factual issue on remand is whether or not the range of motion testing performed by Dr. Johnson was active or passive. However, like the claimant in Medley, the respondents in the present case have simply failed to proffer any evidence, either to the Administrative Law Judge in their request for a hearing, or to the Full Commission in their request for yet another remand, regarding the relevant factual issue presently before the Full Commission. Because the respondents have failed to proffer any additional evidence which they might have sought to present into the record, the respondents have failed to establish any of the four requirements necessary to submit additional evidence into an existing record.
Because the respondents failed to make known to the Administrative Law Judge what additional evidence, if any, which they might have sought to proffer on remand from the Full Commission for additional proceedings, we find no error in the Administrative Law Judge’s denial of the respondents’ motion for an additional hearing to present new evidence. Under these circumstances, we also therefore find that the respondents have failed to establish that the Administrative Law Judge’s denial of a motion for a new hearing violated the respondents’ constitutional rights to due process. Accord Ark.R.Evid. 103(a)(2); City of Benton v. ArkansasSoil and Water Conservation Commission, 345 Ark. 249, 45 S.W.3d 805
(2001); Burmingham v. State of Arkansas, 342 Ark. 95, 27 S.W.3d 351
(2000).
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the decision of the Administrative Law Judge is affirmed in all respects.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann.§ 11-9-809 (Repl. 1996).
For prevailing on this appeal before the Full Commission, the claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715
(Repl. 1996).
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Wilson dissents.
DISSENTING OPINION
MIKE WILSON, Commissioner
I respectfully dissent from the majority’s opinion. I would find that the claimant failed to prove that her impairment rating was based upon passive range of motion tests. The evidence in this case is distinguishable from the evidence that was presented in the Hayes,supra. Unlike the evidence in Hayes, the claimant’s testimony in this matter does not specifically state whether or not she had any voluntary control of her arm movements during Dr. Johnson’s examination. Further, in his records regarding the examination he performed on the claimant to determine her impairment rating, Dr. Johnson does not specifically state whether the range of motion tests that he used were passive or active; while other medical records from Dr. Johnson regarding the claimant specifically reflect that he had in the past performed both active and passive range of motion testing on her. And while Dr. Johnson makes reference to specific pages and figures in the AMA Guidelines, these figures do not distinguish between passive or active range of motion testing.
Because the claimant’s impairment rating was based solely upon range of motion testing, and because I find that it is unclear from the evidence whether this testing was passive or active, I find that the claimant has failed to prove by a preponderance that the physical impairment ratings assigned by Dr. Johnson are based on objective and measurable physical findings, and would reverse the decision of the Administrative Law Judge. Therefore, I respectfully dissent from the majority opinion.
_______________________________ MIKE WILSON, Commissioner