CLAIM NO. F100453
Before the Arkansas Workers’ Compensation Commission
ORDER FILED MARCH 27, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE LAWRENCE FITTING, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE TERRY LUCY, Attorney at Law, Little Rock, Arkansas.
ORDER
This matter is currently before the Full Workers’ Compensation Commission on the claimant’s motion and supplemental motion to remand to the Administrative Law Judge for consideration of new evidence. In order to avoid piecemeal litigation, we remand this case to the Administrative Law Judge to decide the claimant’s motions, and to permit the respondents an opportunity to introduce rebuttal evidence, should the Administrative Law Judge grant the claimant’s motions.
A hearing was held in this matter on May 15, 2001. At that hearing, the central issue was whether the claimant’s alleged injury to his right elbow was established by medical evidence supported by objective findings. In an opinion filed July 25, 2001, the Administrative Law Judge found that the claimant failed to meet this requirement. Specifically, the Administrative Law Judge found that:
[The] diagnosed injury in the form of epicondylitis of the claimant’s right elbow is based slowly (sic) upon the claimant’s subjective complaints. . . . [These] simply do not meet the requirement of “objective findings” as that term is defined by Ark. Code Ann. § 11-9-102(16)(A)(i).
The claimant’s failure to meet the essential requirement of Ark. Code Ann § 11-9-102 (4)(d) precludes any injury he may have sustained to his right elbow from being considered a “compensable injury” within the meaning of the Act. I have no alternative but to so find and deny and dismiss the claim in its entirety.
The claimant filed a notice of appeal on August 16, 2001, but the appeal was suspended following a stay ordered on December 6, 2001 as a result of the liquidation of the respondent’s carrier.
The claimant’s injury occurred on October 24, 2000. The medical records entered into evidence at the hearing spanned the dates November 8, 2000 through April 20, 2001. By the time of the claimant’s last visit with his treating physician, Dr. Cheyne, on April 20, 2001, the claimant had moved from Arkansas to Texas. Dr. Cheyne noted in his progress note for this visit that, “I have suggested to him very strongly that he see an orthopedist in Houston and have some regular physical therapy treatment.”
The claimant now seeks to admit medical records from the treatment, diagnostic testing, and surgery he received in Texas. Ark. Code Ann. § 11-9-705(c)(1)(A) (Repl. 1996) provides that all evidence shall be presented by each party at the hearing, and that additional evidence shall be allowed only at the discretion of the Commission. In the exercise of this discretion, we must consider whether the proffered additional evidence is relevant; whether it is cumulative; whether it would change the result of the case; and whether the party proffering additional evidence exercised diligence in obtaining and seeking to introduce the evidence. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); Haygoodv. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).
In the present case, we remand this case to the Administrative Law Judge for findings on the critical issues of whether the proffered evidence would change the result of the case and on whether the claimant exercised diligence in obtaining and seeking to introduce the proffered additional evidence.
In developing and considering on remand whether the claimant exercised diligence in obtaining and seeking to introduce his proffered evidence, we note for the benefit of the parties and the Administrative Law Judge that the existing record taken with the proffered evidence would seem to support the following conclusions: (1) the claimant’s Arkansas doctors diagnosed epicondylitis; (2) the Arkansas doctors therefore never ordered an MRI or proposed surgery prior to the hearing in this case; (3) only when the claimant went to new doctors in Texas after the hearing did any doctors order an MRI or propose surgery; and (4) once the Texas doctors got the results back on the MRI and surgery was performed, the claimant submitted the MRI results and the surgical results to the Commission in short order. On the other hand, the respondents point out that the claimant did not consult with Dr. Deschaine in Texas until December 17, 2001, some eight months after Dr. Cheyne’s recommendation on April 20, 2001 strongly suggesting that the claimant seek care in Houston. Of course, the parties and the Administrative Law Judge may be able to identify other factors that also potentially bear on the diligence question.
IT IS SO ORDERED.
______________________________ ELDON F. COFFMAN, Chairman
______________________________ SHELBY W. TURNER, Commissioner
______________________________ JOE E. YATES, Commissioner