Opinion
CLAIM NO. E706441
ORDER FILED SEPTEMBER 14, 1999
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.
Respondent represented by the HONORABLE THOMAS M. MICKEL, Attorney at Law, Little Rock, Arkansas.
ORDER
[2] This matter comes before the Full Commission on (1) Respondent's Motion to Introduce Additional Medical Evidence, Or In The Alternative For Remand To The Administrative Law Judge For The Taking Of Additional Evidence, and on (2) Respondent's Motion For Reconsideration Or Remand. After reviewing both motions, the claimant's response thereto, and all other matters properly before the Full Commission, we find that both motions should be denied.With regard to the respondent's motion to submit additional evidence, Ark. Code Ann. § 11-9-705(c)(1) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, the respondent must show that the new evidence is relevant; that it is not cumulative; that it would change the result of the case; and that the respondent was diligent in presenting the evidence to the Commission. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).
In the present matter, we find that the respondent failed to establish that the respondent was diligent in presenting the additional evidence to the Commission for two reasons. First, we note that the respondent's correspondence filed with the Commission on June 7, 1999, and on June 9, 1999, seeks to introduce Dr. Jordan's medical reports dated September 24, 1998; April 19, 1999 and April 23, 1999. In addition, paragraph 6 of the respondent's motion indicates that the respondents have also requested and hope to submit at a later date Dr. Jordan's clinic notes from November of 1998. We note that Dr. Jordan was the claimant's treating surgeon for the injury at issue in this claim. Under the circumstances, we find that the respondent has failed to establish that the respondent was diligent inprocuring from Dr. Jordan the additional medical reports proffered to the Commission in June of 1998.
We also find that the respondent failed to establish that the respondent was diligent in presenting the additional evidence to the Commission. In this regard, we note that the proffered April 19, 1999 and April 23, 1999 reports contain an "MCS" date stamp of May 10, 1999, and the September 22, 1998 report contains an "MCS" date stamp of May 17, 1999. However, these documents were not proffered to the Commission by the respondent until June 7, 1999, and June 9, 1999, i.e., more than one week after the adverse Full Commission decision filed on May 28, 1999.
The respondent's second motion to be considered is its Motion For Reconsideration Or Remand. The respondent has raised a number of different complaints in its motion. The respondent argues that the cases cited in the concurring opinion which set forth the legal standard for what constitutes reasonable and necessary medical treatment are pre-Act 796 cases and therefore are no longer controlling. However, we also note that every case cited by the respondent in its appeal brief on this topic is also a pre-Act 796 case. In any event, the standard for determining what is reasonable and necessary medical care was not changed by Act 796 which left the language of A.C.A. § 11-9-508(a) unchanged. In the absence of amendments which change a statute our interpretation of that statute, and that of the courts, remains the law. Lawhon Farm Services v. Brown, 335 Ark. 272, ___ S.W.2d ___ (1998). Therefore, the respondent's argument is not persuasive.
The respondent also argues that our decision not to defer to findings of the peer review board violates the legislative intent to control medical costs and our Rule 30. This argument is without merit. It is well settled that the Commission has the authority to accept or reject a medical opinion and to determine its probative force. The Commission has a duty to use its experience and expertise in translating the testimony of medical experts into findings of fact. Oak Grove Lumber Co. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637, (1998). Because we are not bound by the findings of the peer review board used by respondent this argument is without merit and should be rejected.
The respondent complains that our decision was based solely upon claimant's post surgery recovery and therefore is in error. Quite clearly the post surgery recovery is but one of several factors relied upon to reach the complained of decision. The respondent also renews its argument that the newly proffered medical evidence discussed above establishes that claimant did not enjoy any benefit from her surgery. As previously noted the respondent failed to establish that the respondent was diligent in procuring or presenting this additional evidence to the Commission. As even the dissenting Commissioner previously acknowledged, once a decision has been rendered against a party, that party cannot come back and attempt to prove its case on appeal with additional evidence, particularly where, as here, the party was not diligent in procuring or presenting the additional evidence. Compare Rosie Brown v. Archibald, Inc., Full Workers' Compensation Commission, February 26, 1998 (W.C.C. No. E417735). Clearly, respondents are no more entitled than claimants to "two bites at the apple." See, Id.; see, also, Lyn Sheridan v. Kallsnick, Inc., Full Workers' Compensation Commission, May 22, 1996 (W.C.C. No. E318630). Because the respondent has failed to establish that the respondent was diligent in procuring or presenting proffered additional medical reports, it would obviously not be proper to reconsider our prior decision based on proffered medical reports which we find should be excluded from the record. Therefore this argument does not constitute a basis for reconsideration or remand of our earlier decision.
The respondent claims that there are two statements in the background discussion of our prior decision which are inaccurate. The respondent does not state why these alleged inaccuracies might be important or even if they relate to the outcome of this matter. The respondent complains that the "Commission stated in the principal opinion that Respondents sought a second opinion; yet, the principal opinion ignores the uncontroverted fact that Dr. Jordan, the physician of claimant's own choosing, selected Dr. Giles, the second opinion physician." The respondent does not dispute that they required the second opinion. Quite simply the principal opinion is silent on who selected the second opinion doctor because it is irrelevant. The respondent advances no persuasive argument that the selection of the second opinion doctor had any effect on the outcome of this matter.
The respondent also complains of a passing description of claimant's injury. In an exchange during claimant's direct examination the phrase "mashed down" was used. The principal opinion uses the word "drove" as opposed to "mashed". In any event, the fact of the claimant's injury is not in dispute and the description of that injury is not relied upon in determining what constitutes reasonably and necessary medical care for claimant's compensable injury.
Because the respondent has failed to raise any arguments which merit reconsideration of our decision or remand to an Administrative Law Judge, the respondent's motion for reconsideration is also denied.
IT IS SO ORDERED.
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CONCURRING OPINION
[16] I concur with the holding in the majority opinion. I concur with and join in the finding that the respondent failed to establish that the respondent was diligent in presenting the additional evidence to the Commission. I concur with and join in the finding that the respondent has failed to raise any arguments which merit reconsideration of our decision. I write separately to address respondent's contention that the proffered additional evidence "must change the result reached by this Commission". In my opinion this additional evidence supports our original opinion. Therefore, in addition to failure to establish the requisite diligence, respondent's motion fails to meet the requirement that the additional evidence would change the results.A.C.A. § 11-9-705(c)(1)(A) (Repl. 1996) provides that all evidence shall be presented by each party at the initial 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 respondent has proven that the additional evidence is relevant; is not cumulative; would change the results; and that they exercised diligence in obtaining the evidence. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960);Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). While medical records are the type of evidence that may meet the requirement that they change the results these particular records do not meet that requirement.
Respondent argues that the additional evidence is "directly contrary" to the evidence in the record of claimant's post surgery improvement. A review of the additional evidence reveals that the contents of that evidence are not "directly contrary" to the observation that claimant enjoyed improvement in her condition after the contested surgery. In fact the proffered documents reinforce the conclusion that claimant enjoyed improvement in her condition after her surgery. The record from October 21, 1998, more than six months after claimant's surgery, and a month and a half after the hearing, contains the following statements;
"She continues to recover well from her anterior cervical discectomy with fusion done in April of this year . . . Her x-ray shows good alignment of the cervical spine and her graft and instrumentation intact. She does feel that she has had significant reduction in overall neck pain, although still has some occasional problem with spasm between the shoulder blades . . . We have determined, within a reasonable degree of medical certainty, that she has reached maximum healing from her surgical spine problems."
The proffered record from April 19, 1999, one year post surgery, reflects that claimant reported an increase in neck pain, muscle spasms and stiffness starting in November of 1998. She also reported an incident in January of 1999 wherein she "looked up, had a sharp pain and was left with increased pain on movement." This same record also states that claimant "still has good grip strength and no neurological deficits." This is significant because claimant's loss of grip strength was one of the factors that had rendered her totally incapacitated prior to the contested surgery.
The proffered evidence does not support the conclusion that claimant derived no benefit from her surgery. In light of the fact that the issue of claimant's surgical results is only one factor relied upon for our decision and the inconclusive evidence proffered by respondent there is simply no basis to conclude that this would change the results of our prior decision.
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DISSENTING OPINION
[23] I respectfully dissent from the majority's opinion. After considering respondents' motion, claimant's responses thereto, and all other matters properly before the Commission, I find that respondents' Motion for Reconsideration and Motion to Introduce Additional Medical Evidence should be granted. In my opinion, the Motion to Introduce Additional Medical Evidence, and the Motion for Reconsideration, both are well taken.Respondent's Motion to Introduce Additional Medical Evidence, is, in my opinion, appropriate under the circumstances. In its Motion, respondent seeks to introduce medical reports obtained from claimant's primary treating physician, Dr. Richard Jordan, dated April 19th and April 23, 1999. These medical reports are directly related to the subject matter of the September 3, 1998 hearing and our May 28, 1999 Opinion. The sole issue for consideration at the hearing and on appeal was whether the surgery performed by Dr. Jordan on April 9, 1998 to fuse a fourth level in claimant's cervical spine was reasonable and necessary medical treatment related to claimant's compensable injury of May 19, 1997. In finding that the surgery was reasonable and necessary medical treatment, the principal and concurring opinions both relied upon the claimant's testimony of, and the medical reports regarding claimant's physical condition following the surgical procedure. Unfortunately, the hearing with regard to the reasonableness and necessity of the cervical fusion was held less than five months after the surgery performed by Dr. Jordan, and a full recovery and maximum medical improvement from the surgery could not, and had yet to be determined. The principal and concurring opinions relied upon claimant's first follow-up visit with Dr. Jordan following the surgery which documented claimant's recovery as "doing remarkably well." However, as reflected in the medical reports which respondent now seeks to introduce into evidence, claimant's perceived improvement as recorded just one month after surgery has failed to be borne out on a long-term basis. These medical reports from claimant's follow-up examination by Dr. Jordan one year after claimant's surgery, document an increase in neck pain, muscle spasms and stiffness. Although physical therapy with massage and interferential were prescribed, Dr. Jordan noted:
The latter has not improved her pain and, in fact, has exacerbated it. She has pain in the neck and medial scapular area with any movement. Any activity makes her pain increase.
After obtaining additional films to check for movement in the fused area, Dr. Jordan recorded:
Mary obtained the flexion and extension films that I requested and they do show movement at C6/7. C4/5 is almost ankylosed and C5/6 is fully ankylosed.
These records confirm the previously espoused opinions of the difficulty of success in a fourth level fusion. After detecting the movement, Dr. Jordan did discuss yet another surgical procedure with the claimant, but has opted to proceed with long-term bracing to avoid any stretching or range of motion of the neck.
Ark. Code Ann. § 11-9-705(c)(1) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, the moving party must show that the new evidence is relevant; that it is not cumulative; that it would change the result of the case; and that she was diligent in presenting the evidence to the Commission. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d. 575 (1980); see, also, Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d. 391 (1982). With regard to the four-prong test set forth above, the majority and I agree that the newly discovered evidence is clearly relevant to this claim as it directly relates to the fusion surgery which is the subject matter of our opinion rendered on May 28, 1999. The reports are not cumulative since they concern treatment claimant received after the hearing in this matter and since they reflect a different picture of claimant's recovery than the reports which were introduced at the hearing. These reports, should also change the result of the principal and concurring opinions which relied heavily upon the post-surgical reports describing claimant's condition following surgery. Specifically, the principal opinion, in finding that the fourth-level fusion was reasonable and necessary medical treatment stated:
After this procedure claimant's condition significantly improved and she regained the use of her right hand.
Furthermore, the concurring opinion posed the following question in assessing whether the treatment was reasonable and necessary:
Was Dr. Jordan's April 9, 1998 surgery ultimately successful in achieving its intended goal of pain reduction?
A review of the post-surgical reports introduced at the hearing and relied upon by the principal and concurring opinion indicated that the surgery was "ultimately successful." However, the medical reports obtained one year following claimant's surgery, reflect that within just seven months after surgery claimant's pain began to significantly increase where to the point one year post surgery, any movement created pain.
In my opinion respondent acted diligently in obtaining the medical records. Obviously, respondent could not have introduced medical records which were not even in existence until several months after the hearing in this claim. Upon receipt of the medical records, respondent did move for their introduction. This Commission has found in previous cases that medical records obtained after the hearing which meet the four-prong test may be admitted and considered on appeal. See, Gilbert v. Land O'Frost, Full Commission Order filed October 7, 1996 ( E115249);Yell v. Campbell Soup Company, Full Commission Order filed March 16, 1995 ( E200063).
The majority has penalized the respondent for not moving to introduce these medical records until after our opinion was rendered although the records were both generated and received prior to our opinion. All relevant evidence in existence at the time of the hearing was presented. Granted, medical records of claimant's September and October 1998 office visits could have been sought and offered in a more timely manner. Thus, I agree that respondent may not have been diligent in obtaining and moving to introduce the 1998 records. However, the same is not true of the record from claimant's April 1999 and April 23, 1999 office visits. These records reveal that they were not even dictated by the doctor until April 29, 1999 and they bear a transcription date of April 30, 1999. As noted by the majority opinion the respondent carrier date stamped these records on May 10, 1999. There is no evidence to suggest that this 10 day turn around from transcription to receipt by respondent is anything out of the ordinary, and appears to be a normal turnaround time. Once these records are received by the carrier, they must be reviewed and analyzed before any action may be taken. The April 19, 1999 report mentions prior problems in November of 1998, an episode in January of 1999 and a trial with physical therapy. This obviously prompted additional investigation into the claimant's care, as evidenced by the May 17, 1999, MCS date stamp on the September and October office notes. It is also of note that Dr. Jordan's office "cc" the adjustor with respondent carrier, the claimant and two of claimant's treating physicians on the April 19, 1999 and April 23, 1999 office records, but did not "cc" anyone with the September and October records. By the time respondent had the opportunity to obtain and review all these records and forward them to their attorney, thus allowing the attorney the opportunity to review the records and weigh his options, it is very likely that our May 28, 1999 opinion was handed down. Accordingly, at least with regard to the medical records from claimant's April 19th and April 23rd office visits, I am at a loss as to how anyone can accuse respondent of anything less than diligence.
Accordingly, for those reasons set forth above, I find that Respondents' Motion for Reconsideration and Motion to Introduce Additional Evidence must both be granted.
Therefore, I respectfully dissent from the majority opinion.
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