CLAIM NO. E502226.
Before the Arkansas Workers’ Compensation Commission
ORDER FILED NOVEMBER 16, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE BILL F. JENNINGS, Attorney at Law, Magnolia, Arkansas.
Respondent represented by the HONORABLE CAROL LOCKARD WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Vacated and remanded.
ORDER
The claimant appeals an opinion and order filed by the administrative law judge on May 30, 2000. In that opinion and order, the administrative law judge found in relevant part that the claimant has failed to meet his burden of proof that he is permanently and totally disabled, that the claimant has failed to participate and cooperate with offered job placement assistance and vocational evaluations, and that the respondents are entitled to a credit against future benefits up to $168,551.28 based on a settlement entered into between the claimant and third parties in the amount of $380,000. For the following reasons, we remand this claim for the administrative law judge to settle the record, for the parties to develop all legal and factual issues before the administrative law judge, and for the administrative law judge to make findings of fact and conclusions of law thereafter.
1. Permanent Disability Benefits.
The administrative law judge’s denial of benefits appears to rely in part on a factual finding that there has been no medical basis for the claimant’s reports of pain and discomfort in the use of his prosthesis. In reaching this conclusion, the administrative law judge indicates that he relies on unspecified reports of Dr. Charles Knight and Dr. Greg Smolarz. We are unable to determine which of Dr. Smolarz’s reports in the hearing transcript that the administrative law judge is referring to, and we are unable to locate any of Dr. Knight’s reports in the hearing transcript.
As an alternative ground for denying the claimant permanent and total disability benefits, the administrative law judge appears to interpret the amendments of Act 796 of 1993 to Ark. Code. Ann. § 11-9-519 and 521 to now prohibit an award of permanent total disability compensation under circumstances where a worker has only one scheduled injury and not two. We note that neither party has addressed this proposed statutory interpretation issue in their briefs on appeal.
2. Application of Arkansas Code Ann. § 11-9-410 to Third-Party Settlement.
The respondents assert several grounds on appeal to the Full Commission in support of a credit based on the claimant’s third-party settlement. First, the respondents essentially assert that Act 796 of 1993 eliminated the ability of injured workers and third parties to “settle around” workers’ compensation carriers. We fail to see where the parties ever developed this statutory interpretation issue before the administrative law judge. In fact, the administrative law judge’s discussion of the credit issue quotes Section 410 as it existed prior to the amendments of Act 796. We also note that the claimant did not file a reply brief to address the statutory interpretation of Act 796 proposed by the respondents in the respondents’ brief on appeal.
The respondents also assert in their brief on appeal that, even if Act 796 did not eliminate “settling around”, the claimant in this case did not effectively settle around the workers’ compensation carrier. In support of this argument, the respondents quote discussions of the claimant’s attorney at a hearing in Circuit Court. Notably, the Circuit Court hearing transcript quoted from in the respondents’ brief on appeal was not included in the hearing transcript of this case.
We note that the claimant asserted at the start of the hearing [T.P.11] that the respondents’ acceptance of a $55,000 settlement from the third parties constitutes a waiver by the respondents of any right to a credit, and the claimant now asserts in the alternative on appeal that the Circuit Court’s approval of settlement agreements at issue in this case is res judicata with respect to claims of the respondent carrier against the claimant for a credit. The claimant’s attorney also argues on appeal that, even if a credit were appropriate, the credit calculation must include both the claimant’s settlement and the respondents’ settlement to ascertain the appropriate credit amount.
All factual and legal issues should be developed before the administrative law judge. We remand this claim to permit the parties and the administrative law judge to specifically identify those documents in the Commission file which are to be included in the record, for the parties to develop all factual and legal issues before the administrative law judge based on the record developed, and for the administrative law judge to make findings of fact and conclusions of law thereafter.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ PAT WEST HUMPHREY, Commissioner
_______________________________ MIKE WILSON, Commissioner