BERG v. CLOYES GEAR COMPANY, 1997 AWCC 278

CLAIM NO. E608409

LAYVONNA BERG, EMPLOYEE, CLAIMANT v. CLOYES GEAR COMPANY, EMPLOYER, RESPONDENT and INSURISK INSURANCE SERVICES, CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED JUNE 18, 1997

Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.

Claimant represented by WILLIAM KROPP, III, Attorney at Law, Fort Smith, Arkansas.

Respondent represented by WILLIAM GRIFFIN, III, Attorney at Law, Little Rock, Arkansas.

[1] ORDER
[2] This matter is before the Commission on respondent’s motion to remand this case to the Administrative Law Judge to correct the record and to render a new opinion in light of the corrected record. After consideration of respondent’s motion, claimant’s response thereto and all other matters properly before this Commission, we find that respondent’s motion should be and hereby is granted.

[3] All parties agree that the evidence was inadvertently excluded from the record by the court reporter. There is no indication in the Administrative Law Judge’s opinion whether he included the “additional evidence” in rendering his opinion. If such information was taken into account by the Administrative Law Judge, the Administrative Law Judge should so state in a supplemental opinion. However, if the Administrative Law Judge failed to consider the evidence since it was inadvertently excluded from the record, the Administrative Law Judge should issue a new opinion advising that all evidence has been considered. While the evidence may not change the Administrative Law Judge’s opinion, since the exhibits were supposed to be in the record, it is our opinion that the Administrative Law Judge should advise us whether he considered such information at the time he rendered his opinion. It is not for the Full Commission to second-guess whether the records inadvertently left out of the record were considered by the Administrative Law Judge. Accordingly, this matter is hereby remanded to the Administrative Law Judge to correct the record and to issue a new opinion in light of the corrected record. [4] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[5] Commissioner Humphrey dissents.

[6] DISSENTING OPINION
[7] Respondent has filed a motion to remand to an Administrative Law Judge to correct the record. Claimant has no objection to respondent’s request to include certain evidence in the record. Therefore, both parties agree, that the evidence should be considered. Rather than remand this matter to the Administrative Law Judge, I believe the Commission should simply include the evidence in the record and render an opinion on the merits after a de novo review.

[8] PAT WEST HUMPHREY, Commission