CLAIM NO. E614038
Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 12, 1998
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE TERENCE JENSEN, Attorney at Law, Benton, Arkansas.
[1] ORDER[2] On its own motion, the Full Commission finds that this case must be remanded to the administrative law judge to settle the record in this case. [3] In an opinion and order filed July 24, 1997, the administrative law judge found in relevant part that the following stipulations were offered by the parties and are hereby accepted:
[4] In that opinion and order the administrative law judge went on to find that the claimant has established all essential elements for her injury to be considered compensable under the definition given by A.C.A. § 11-9-102(5)(A)(i). However, in reviewing Commission’s Exhibit No. 1 submitted into evidence at the hearing held on April 16, 1997, (i.e. pre-hearing order dated February 5, 1997), we note that the typed portion of stipulation No. 3 in that document only indicated that compensability of this claim is controlled by the provisions of either “A.C.A. §11-9-102(5)(A)(ii)(b),” but does not make any mention of A.C.A. §11-9-102(5)(A)(i) or any other provision of the Arkansas Workers’ Compensation Commission Law. However, we note that the copy of Commission’s Exhibit No. 1 filed in the record of this case also contains the handwritten language “or § 11-9-102(5)(A)(i).” [5] We are simply unable to determine from the record before us when, and by whom, these handwritten comments were placed onto Commission’s Exhibit No. 1, i.e. whether or not these handwritten comments were made before or after this document was placed into the evidence of record in this case on April 16, 1997. The administrative law judge’s opinion and order filed July 24, 1997, states that the claimant contends that her compensable injury was either the result of a specific incident (occurring on September 25, 1996) or is the result of multiple cumulative trauma. The administrative law judge’s opinion and order goes on to state that stipulation No. 3 should have reflected that the question of compensability is controlled by the provisions of either A.C.A. §11-9-102(5)(A)(ii)(b) or § 11-9-102(5)(A)(i). The administrative law judge’s opinion also states that a copy of the pre-hearing order “with the appropriate amendments noted thereon,” has been made Commission’s Exhibit No. 1 for the hearing. [6] However, we note that neither the administrative law judge’s July 24, 1997, opinion and order or the hearing transcript from the April 16, 1997, hearing indicate whether or not the handwritten amendments to stipulation No. 3 were made before or after the February 5, 1997, pre-hearing order was made a part of the record at the April 16, 1997, hearing, and neither the opinion and order or the hearing transcript indicate whether or not the claimant and or the respondent agreed with whoever made the handwritten amendments to stipulation No. 3 as contained on the pre-hearing order that is currently Commission’s Exhibit No. 1 attached to the April 16, 1997, hearing transcript. [7] Consequently, we find that this case must be remanded to the administrative law judge to settle the record before we can determine whether or not the issue of compensability under Ark. Code Ann. § 11-9-102(5)(A)(i) was in fact a hearing issue. Therefore, the administrative law judge is directed to take such additional action as may be necessary and to make specific findings with regard to (1) by whom and when were the amendments to stipulation No. 3 in Commission’s Exhibit No. 1 made, either prior to, during, or after the hearing held on April 16, 1997; (2) whether both parties agree to the handwritten amendments to stipulation No. 3 prior to Commission’s Exhibit No. 1’s submission into evidence in this case; (3) if both parties did not agree to the handwritten amendments to stipulation No. 3 prior to entry of the February 5, 1997, pre-hearing order into evidence, whether the administrative law judge was bound to determine the compensability issue of this case solely under Ark. Code Ann. §11-9-102(5)(A)(ii)(b). [8] Finally, we note that the respondents have raised two additional procedural issues on appeal. First, the respondents essentially assert that the claimant’s attorney waived any right to have this case considered under the specific incident provisions when the claimant’s attorney objected to the respondents’ attorney questioning the claimant about the alleged incident and the claimant’s attorney stated in support of his objection “We’re claiming an injury, a gradual onset injury.” Second, the respondents assert that, even if the claimant’s objection and grounds for objection do not amount to abandonment or waiver, the respondents should be provided an opportunity to present additional evidence on the specific incident issue since the respondents were misled by the claimant’s attorney into believing that the issue had been waived or abandoned. We find that determination of these issues should be held in abeyance until the record is settled. [9] IT IS SO ORDERED.3. Compensability of this claim is controlled by the provisions of either A.C.A. § 11-9-102(5)(A)(ii)(b) or § 11-9-102(5)(A)(i).
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[10] Commissioner Humphrey concurs.