CLAIM NO. E007238
MORRIS LEE BLAKE, EMPLOYEE, CLAIMANT v. RICKETTS TRUCKING, EMPLOYER, RESPONDENT and WAUSAU INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 24, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DON P. CHANEY, Attorney at Law, Arkadelphia, Arkansas.
Respondents represented by the HONORABLE JOSEPH KILPATRICK, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Remanded.
[1] OPINION AND ORDER
[2] The claimant appeals an opinion and order filed by the administrative law judge on January 21, 1994. After reviewing this matter, we find that this claim must be remanded so that the record can be settled.
[3] Whenever a party applies for review by the Full Commission of an administrative law judge’s determination, we must conduct a de novo review of the entire record of evidence received by the administrative law judge. Woods v.Best Western,
32 Ark. App. 196,
799 S.W.2d 565 (1990). Furthermore, this Commission and administrative law judges have a statutory duty to make any determinations on the basis of the record as a whole. Ark. Code Ann. §
11-9-704 (c)(2) (1987). Obviously, this Commission cannot properly perform our duty to review the entire record unless all of the evidence comprising the record is readily discernable with certainty. We simply cannot engage in any guesswork or speculation whatsoever in determining the contents of the record, for doing so would give rise to the risk that we would consider evidence not included in the record or that we would fail to consider evidence which was included in the record. Consequently, any exhibit received into the record must be sufficiently identified so that there is no doubt that it is, in fact, the exhibit which was received into the record.
[4] In the present matter, there is confusion regarding whether medical records were included in the record, and, if such records were in fact included, which records were included. No hearing was held in this claim. In his January 21, 1994, opinion and order, the administrative law judge states that the case was submitted “on the deposition of the claimant taken on November 17, 1993, and the deposition taken of Dr. Edward Saer on December 9, 1993, along with letter briefs from respective counsel.” However, both parties state in their briefs to the Full Commission and in their letter briefs to the administrative law judge that medical records were to be included in the record. Moreover, in correspondence to the attorneys for both parties dated October 21, 1993, the administrative law judge also states that the case was to be submitted on an exhibit of existing medical reports as well as the depositions of the claimant and Dr. Saer.
[5] Consequently, due to the administrative law judge’s failure to recognize the inclusion of any medical exhibits in the record, it is not clear whether he did or did not accept any medical exhibits into the record. Furthermore, while the Commission’s file for this claim does contain medical documents in various places, we are unable to locate any documents which are identified in any manner as being exhibits which may have been included in the record. In addition, at the claimant’s deposition on November 17, 1993, the respondents’ attorney indicated that the claimant’s deposition had previously been taken on January 28, 1991, and he indicated that the November 19, 1993, deposition was to supplement the 1991, deposition. Furthermore, the respondents’ attorney indicated that certain questions would not be asked because they were asked during the 1991 deposition. While these statements seem to indicate that the 1991 deposition was to be included in the record, we are unable to locate that deposition.
[6] Accordingly, we find that this claim must be remanded to the administrative law judge so that the record can be settled. On remand, the administrative law judge is instructed to determine what exhibits constitute the record, and he is instructed to clearly identify those exhibits on their face so that there can be no mistake as to whether the exhibit is part of the record. In addition, if the administrative law judge determines that he inadvertently failed to consider evidence properly included in the record, he is instructed to take such steps as are necessary to assure that he makes a determination based on the entire record, including vacating, setting aside, or amending his previous decision and filing another opinion or supplemental opinion. The administrative law judge is also instructed to take such actions and to conduct such proceedings as are necessary to comply with these instructions, and to enter an order setting forth his findings.
[7] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner PAT WEST HUMPHREY, Commissioner
