CLAIM NO. E500506
Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 14, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GEORGE R. WISE, JR., Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE THOMAS N. KIEKLAK, Attorney at Law, North Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on August 30, 1995. In that opinion and order, the administrative law judge found that the claimant failed to establish the elements necessary to establish a compensable injury under the Arkansas Workers’ Compensation Law as amended by Act 796 of 1993. After conducting a de novo review of the entire record, we find that the Administrative Law Judge’s decision must be affirmed.
[6] If the employee fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, she fails to establish the compensability of the claim, and compensation must be denied.Reed, supra. [7] In the present claim, we find that the claimant failed to establish an injury with medical evidence supported by objective findings, as required by Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996). In this regard, objective findings are defined in Ark. Code Ann. § 11-9-102(16) (Cumm. Supp. 1993) as “those findings which cannot come under the voluntary control of the patient.” In the present claim, while the record contains a statement of Dr. Taggart’s diagnosis, there is no evidence whatsoever of the findings upon which he bases this diagnosis. As discussed, Dr. Frazier’s report of his examination of the claimant indicates that he obtained only negative findings. Consequently, although both physicians have opined that the claimant’s condition is related to her employment, the medical evidence simply is not sufficient to satisfy the requirements of the Arkansas Workers’ Compensation Law, as amended by Act 796 of 1996. Therefore, we find that the claimant failed to establish a compensable injury, and we find that the Administrative Law Judge’s decision must be affirmed. [8] In reaching this decision, we note that the Administrative Law Judge and the claimant’s attorney were highly critical of the Full Commission for finding that claimants must satisfy all elements of a claim for compensability where the respondents’ denial of compensability focuses on only one element specifically. The proposition that a party bringing a claim must establish every element required to establish such a claim in order to prevail is an elementary concept of law. Certainly, proof of the facts necessary to establish certain elements can be provided by the stipulations of the parties, and, where evidence related to an element is unrebutted, the element may be established with only minimal evidence. However, the party opposing the claim is not required to specifically challenge every element of the claim in order to bring that element into issue. Instead, by challenging the claim, the opposing party brings every element of the claim into issue and imposes the burden of establishing each element of the claim on the party bringing the claim. This is such an elementary tenet of the law that the claimant in the present claim cannot be heard to claim surprise by its application, as he suggests. Furthermore, the claimant cannot be heard to complain that he did not know the elements of compensability under the amended law since these elements are contained in the statute itself. [9] We also note that the Administrative Law Judge was highly critical not only of the Full Commission’s interpretation of Act 796 but he was also highly critical of the General Assembly for enacting certain provisions of the Act. We point out to the Administrative Law Judge that his duties do not include the criticism of this Commission or the General Assembly of this State. Instead, his duties are limited to hearing and determining claims for compensation in accord with the policy of this Commission. Ark. Code Ann. § 11-9-205(b)(1) and (c) (Repl. 1996). Thus, the Administrative Law Judge’s duties are limited to administering and enforcing the laws enacted by the General Assembly and rules adopted by this Commission, not criticizing them. By criticizing the General Assembly and rulings of this Commission at an open hearing and in the official opinion that he filed, the Administrative Law Judge not only exceeded his authority but he acted in a manner which is potentially detrimental to the law that he is sworn to administer and enforce. [10] In addition, although the Administrative Law Judge signed the opinion filed in this claim as his own, he clearly did not write the opinion. In this regard, we note that the opinion is written in a format and style which is unlike that commonly written by the Administrative Law Judges of this Commission and which is more like an appellate brief to the Court. For example, the opinion begins with a section titled “ABSTRACT OF THE RECORD.” This Commission cannot recall any opinion written by this Administrative Law Judge or any other Administrative Law Judge containing an abstract of the record or similar language. [11] We take this opportunity to clarify our position with regard to the practice of Administrative Law Judges having one of the parties write the opinion. We do not condone or accept this practice. Administrative Law Judges are authorized by the Arkansas Workers’ Compensation Law and employed by this Commission to conduct hearings and to file opinions setting out their determinations and findings of fact. Thus, by allowing a party to write the opinion, the Administrative Law Judge shirks and avoids one of the basic duties and requirements of his or her employment. [12] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to establish the elements necessary to show her entitlement to compensation. Therefore, we find that the Administrative Law Judge’s decision must be, and hereby is affirmed. This claim is hereby denied and dismissed. [13] IT IS SO ORDERED.(1) proof by a preponderance of the evidence of an injury arising out of and in the course of his employment (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996); Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996); see also, Ark. Code Ann. § 11-9-401(a)(1) (Repl. 1996));
(2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body (see, Ark. Code Ann. § 11-9-102(5)(A)(ii) (Repl. 1996));
(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury (see, Ark. Code Ann. § 11-9-102(5)(D) (Repl. 1996));
(4) proof by a preponderance of the evidence that the injury was caused by rapid repetitive motion (see, Ark. Code Ann. § 11-9-102(5)(A)(ii)(a) (Repl. 1996));
(5) proof by a preponderance of the evidence that the injury was the major cause of the disability or need for treatment (see, Ark. Code Ann. § 11-9-102(5)(E)(ii) (Repl. 1996)).
JAMES W. DANIEL Chairman ALICE L. HOLCOMB, Commissioner
[14] Commissioner Humphrey dissents.[15] DISSENTING OPINION
[16] While I fully agree with the majority’s admonitions concerning the proper duties of an Administrative Law Judge and the impropriety of allowing a litigant’s attorney to draft administrative opinions, I must respectfully dissent from the finding that claimant is not entitled to workers’ compensation benefits relating to her overuse syndrome.