CLAIM NO. D904338
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 15, 1994
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE J. SLOCUM PICKELL, Attorney at Law, Pine Bluff, Arkansas.
Respondent represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
Decision of Administrative Law Judge: Affirmed and adopted in part and vacated in part.
[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on March 7, 1994. In that opinion and order, the administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he is entitled to a change of physicians. In addition, the administrative law judge found that certain treatment rendered by Dr. John Barbaree and by Dr. Austin Grimes was authorized and reasonably necessary for treatment of the compensable injury.
review of the entire record herein and it is our opinion that the Administrative Law Judge’s denial of the petition for a change of physician is supported by a preponderance of the credible evidence, correctly applies the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that the findings made by the Administrative Law Judge in this regard are correct and they are, therefore, adopted by the Full Commission. [4] However, we find that the question of the respondent’s liability for treatment provided by Drs. Barbaree and Grimes was not an issue raised and litigated by the parties. The responses of both parties to the prehearing questionnaire state that the only issue to be litigated was the claimant’s entitlement to a change of physician. Likewise, the administrative law judge filed a prehearing order on March 22, 1993, and this order only reflects the claimant’s entitlement to a change of physician as the issue to be considered. In addition, at the beginning of the April 29, 1993, hearing, the only contention raised by either party pertained solely to the claimant’s request for a change of physician, specifically a change to Dr. Abraham. [5] 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). Consequently, we find that the administrative law judge’s decision regarding the respondent’s liability for treatment provided by Drs. Barbaree and Grimes must be vacated and set aside. [6] 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 denial of the claimant’s petition for a change of physicians should be, and hereby is affirmed and adopted as the decision of the Full Commission on appeal. However, we find that the administrative law judge’s decision regarding the respondent’s liability for treatment provided by Drs. Barbaree and Grimes must be, and hereby is, vacated and set aside. [7] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[8] Commissioner Humphrey dissents.