TADLOCK v. ST. JOSEPH’S REGIONAL HEALTH CENTER, 2001 AWCC 238

CLAIM NO. E801168

RONALD TADLOCK, EMPLOYEE, CLAIMANT v. ST. JOSEPH’S REGIONAL HEALTH CENTER, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED NOVEMBER 5, 2001

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE DONALD C. PULLEN, Attorney at Law, Hot Springs, Arkansas.

Respondents represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.

ORDER
This matter comes before the Full Commission on review of an Administrative Law Judge’s opinion and order filed on March 5, 2001. We vacate the Administrative Law Judge’s decision and remand for more adequate findings.

First, the Administrative Law Judge denied ongoing medical treatment for pain beyond June 13, 2000 with Dr. Abraham and Dr. Hardy. On this issue, the Administrative Law Judge stated:

Beyond Dr. Hardy’s comment that he observed some muscle spasm the first time he saw the claimant, the treatments rendered by Dr. Hardy and by Dr. Abraham constitute treatment for continuing complaints of pain. The objective tests performed by Dr. Abraham and Dr. Hardy are all within normal limits.
In the absence of some objective finding other than a one-time notation by Dr. Hardy that the claimant had some muscle spasm, there are insufficient objective findings to justify continuing treatment for purposes of complaints of pain.

The Administrative Law Judge has failed to indicate what part of the record that the Administrative Law Judge is relying on, and we note that the Administrative Law Judge’s conclusion regarding the lack of muscle spasm appears to be inconsistent with testimony on page 17 of Dr. Hardy’s deposition. We therefore vacate the Administrative Law Judge’s finding on this issue and remand for more adequate findings after a review of the entire record.

There is also some confusion in the briefs on appeal as to whether or not the Administrative Law Judge awarded the claimant’s attorney a fee on $42,884.00 in medical benefits. In this regard, the claimant’s reply asserts on page 3 that the Administrative Law Judge “stated, `The attorney’s fee on the medical benefits controverted and unpaid at the initial hearing on April 16, 1999, are in the amount of $42,884.00.'” For our part, we are not able to find the quotation attributed to the Administrative Law Judge anywhere in the hearing record or anywhere in the March 5, 2001 opinion and order. We have located the following statements on page 8 of the Administrative Law Judge’s decision, but unlike the dissent we are unable to determine from the following statement whether the Administrative Law Judge did or did not find that the preponderance of the evidence establishes that the controverted and unpaid medical at issue was in fact $42,884.00:

Respondents are directed to pay the claimant’s attorney, Mr. Donald Pullen, the maximum attorney’s fee on the medical benefits which were controverted and unpaid at the initial hearing before Administrative Law Judge Greenbaum on April 16, 1999. The claimant’s attorney stated that the amount of controverted and unpaid medical at the first hearing was in the amount of $42,884.00. That statement was not refuted by respondents. Respondents are ordered to pay the attorney’s fee pursuant to the provisions of Ark. Code Ann. § 11-9-715 and Coleman v. Holiday Inn, 31 Ark. App. 224, 792 S.W.2d 345 (1990).

To the extent that the Administrative Law Judge has indicated that the respondents did not refute the $42,884.00 figure, we note that the respondents’ prehearing letter in the record states that the respondents have no way to prove or disprove the $42,884.00 figure. Likewise, on page 19 of their brief, the respondents state that the respondents have always maintained that the figure of $42,884.00 cannot be proved or disproved. For our part, we are unable to identify what evidence, if any, that the claimant presented into the record to establish a $42,884.00 figure or what evidence, if any, that the respondents presented to establish the respondents’ alternative proposed figure of $24,379.00. Consequently, we also remand to the Administrative Law Judge to clarify his finding, or if agreed to by the parties, to further develop this issue to avoid piecemeal litigation.

IT IS SO ORDERED.

______________________________ ELDON F. COFFMAN, Chairman
______________________________ MIKE WILSON, Commissioner

Commission Turner concurs in part and dissents in part.

CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner

I concur that this cause should be remanded to an Administrative Law Judge for more adequate findings. However, I find that the law judge’s inquiry should be limited to the issue of additional medical treatment. I cannot agree that the attorney’s fee issue should be addressed.

The attorney’s fee issue was not raised. Claimant’s Notice of Appeal was limited to the issues of claimant’s entitlement to temporary total disability benefits and additional medical treatment. Respondents did not file a cross-appeal. Nevertheless, the majority has concluded that due to “. . . confusion in the briefs on appeal as to whether or not the Administrative Law Judge awarded the claimant’s attorney a fee on $42,884.00 in medical benefits.” First, I do not find that there exists any confusion. More importantly, the administrative law judge’s opinion is clear with respect to the award of attorney’s fees. Page 8 of the law judge’s opinion provided in part:

Respondents are directed to pay the claimant’s attorney, Mr. Donald Pullen, the maximum attorney’s fee on the medical benefits which were controverted and unpaid at the initial hearing before Administrative Law Judge Greenbaum on April 16, 1999. The claimant’s attorney stated that the amount of controverted and unpaid medical at the first hearing was in the amount of $42,884.00. That statement was not refuted by respondents. . . .

Previously, we have refused to consider issues which exceed the scope of the appeal notice. In Donald Ray Pilcher v. Baldwin Shell Construction Company, Full Workers’ Compensation Commission Op. filed Aug. 5, 1999 (E801565), claimant was awarded indemnity benefits until June 3, 1998. Respondents appealed the law judge’s decision; however, no cross-appeal was filed by claimant. In his reply brief, claimant argued that his entitlement to temporary total disability benefits extended beyond June 3, 1998. We did not address this argument, reasoning that:

Since the claimant did not file a cross-appeal in this claim, we must decline to reach any issue presented in his brief which does not relate to the issue specifically framed in the respondents’ notice of appeal, videlicet, whether the administrative law judge erred in finding that the claimant was entitled to payment of temporary total disability benefits through June 3, 1998. See, Mills v. The Wright Place, Full Workers’ Compensation Commission, opinion filed September 11, 1997 (E516754).

I see no basis whatsoever to depart from this holding. Claimant’s appeal notice did not encompass the attorney’s fee issue, and no cross-appeal was filed by respondents. Under these circumstances, it is improper to consider the attorney’s fee issue.

Based on the foregoing, I concur in part and dissent in part.

_____________________________________ SHELBY W. TURNER, Commissioner