Opinion
CLAIM NO. E315326
OPINION FILED JUNE 7, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAMES N. MILLER, Attorney at Law, Forrest City, Arkansas.
Respondents represented by the HONORABLE ROBERT J. DONOVAN, Attorney at Law, Marianna, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on October 6, 1994. In that opinion and order, the administrative law judge found that the claimant failed to establish that she sustained a compensable occupational disease. After conducting a de novo review of the entire record, we find that the claimant failed to prove by clear and convincing evidence that she sustained a compensable occupational disease.
Initially, we find that the claimant's request for a remand to allow her to present additional evidence and to amend the pleadings of her original claim must be denied. Although Ark. Code Ann. § 11-9-704(b)(7) (1987) allows the Commission to remand a claim for additional evidence, Ark. Code Ann. § 11-9-705(c)(1) (1987) also provides that all evidence must be submitted at the initial hearing on the claim. Thus, to warrant a remand for additional 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 he was diligent in presenting the evidence to the Commission. Mason v. Lauck, 233 Ark. 591, 340 S.W.2d 575 (1980); see also, Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). Furthermore, a request for a hearing for the introduction of additional evidence must show the substance of the evidence desired to be presented. Ark. Code Ann. § 11-9-705(c)(2)(A).
In the present claim, the claimant has given no indication regarding the substance of the evidence she seeks to present whatsoever. In fact, her request suggests that she had no specific evidence at this time that she plans on presenting. Furthermore, claimant's request and her brief indicate that the claimant's real motive for seeking a remand is to "amend the theory under which the claim is submitted." Thus, the claimant seeks to develop her claim under a different theory. However, the requirement that all evidence be presented at the initial hearing carries with it the requirement that all theories be developed at that time. Therefore, we find that the claimant's request must be, and hereby is, denied.
The claimant has worked for the respondent employer for over 27 years. In May of 1993, she began experiencing swelling throughout her body. She was initially treated by Dr. Turner and Dr. Hodges. Ultimately Dr. Hodges referred the claimant to Dr. Hedges. On August 27, 1994, Dr. Hedges placed the claimant on medical leave for one week. While she was away from the plant, her symptoms disappeared. However, when she again returned to the plant, the symptoms again returned. Since that time, the claimant has continued to experience swelling when she is at the plant but not when she is away from the plant. She works on the assembly line, and she does not handle paint or other chemicals. Ethel Smith, the plant nurse, testified that she was not aware of any chemical in use on the assembly line. Ms. Smith also testified that there were no other incidents or reports of allergic reactions. The claimant's son testified that he has observed the claimant return from work with significant swelling around her mouth and in her hands.
Initially, we find that the claimant is seeking compensation for an occupational disease and not an accidental injury. In this regard, the Arkansas Workers' Compensation Law does not define the distinction between "accidental injuries" and "occupational diseases." Hancock v. Modern Industrial Laundry, 46 Ark. App. 186, 878 S.W.2d 416 (1994). However, the Act does define occupational disease as follows:
"Occupational disease", as used in this chapter, unless the contest otherwise requires, means any disease that results in a disability or death and arises out of and in the course of the occupation or employment of the employment, or naturally follows or unavoidably results from an injury as that term is defined in this chapter. . . .
Ark. Code Ann. § 11-9-601(e)(1). In addition, the Arkansas Court of Appeals has noted that "one widely accepted and salient distinction is that occupational diseases are generally gradual rather than sudden in onset." Id. We also note the term injury is generally defined as damage inflicted to the body by external forces or means.Dorland's Illustrated Medical Dictionary (27th ed.) On the other hand, a disease is generally defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs. Id. Consequently, the distinguishing factor between claims for accidental injuries and occupational diseases generally is whether the source of the condition giving rise to the claim is an external, traumatic event, or events, or whether the source is pathological processes either not produced by a specific traumatic event or series of traumatic events.
In the present claim, there is no evidence suggesting that the claimant's condition is ceased by an external, traumatic event or a series of such events. Instead, the evidence indicates that it is caused by a pathological process. Therefore, we find that the claimant seeks compensation for an occupational disease and, therefore, that she must establish her claim for compensation by clear and convincing evidence.
However, after conducting a de novo review of the entire record, we find that she suffers from a compensable occupational disease. Her physicians have determined that she is allergic to some agent in the respondent employer's plant based on the presence of the symptoms when she is in the plant and the disappearance of the symptoms when she is away. However, although the medical evidence indicates that the claimant is allergic to several foods and to dust and mold, there is no evidence that she has undergone allergy testing. Moreover, her physicians have not identified any allergen as being responsible for the claimant's condition.
Furthermore, the claimant's assertion that the symptoms only occur when she works in the plant is contradicted by other evidence. In this regard, the claimant has not worked in the plant since September of 1993. However, although the records indicate that being off work has reduced her symptoms, they also indicate that she was still suffering from allergic symptoms in December of 1993 and in January of 1994.
In short, there is no evidence identifying any allergen or other agent in the respondents' plant that could be causing the claimant's problems. Furthermore, her symptoms have persisted even though she no longer works in the plant. Therefore, any conclusion that these problems are caused by an allergen or reaction to an agent in the plant would be pure speculation and conjecture.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by clear and convincing evidence that she is entitled to compensation for an occupational disease. Therefore, this claim is denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey recuses.