Opinion
CLAIM NO. E713166
OPINION FILED NOVEMBER 30, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE EDDIE WALKER, JR., Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of the Administrative Law Judge: Affirmed in part, vacated and remanded in part.
OPINION AND ORDER
[2] Respondents appealed an opinion and order filed by the Administrative Law Judge on June 10, 1999. In that opinion and order, the Administrative Law Judge made the following findings of fact and conclusions of law:
1. The stipulations agreed to by the parties at the pre-hearing conference conducted on March 3, 1999, and contained in the pre-hearing order filed that same date, are hereby accepted as fact.
2. Claimant has proven by a preponderance of the evidence that he is entitled to a functional capacities evaluation as a result of his compensable injury.
3. Claimant has proven by a preponderance of the evidence that he is entitled to additional medical treatment as a result of his compensable injury.
4. Claimant has proven by a preponderance of the evidence that he is entitled to temporary total disability benefits from November 11, 1998 through a date yet to be determined.
5. Respondent has controverted claimant's entitlement to the functional capacities evaluation and to additional medical treatment as well as his entitlement to temporary total disability benefits.
The medical evidence shows that on November 11, 1998, Dr. Luke Knox, claimant's surgeon, opined that as a condition precedent to his return to the work force, claimant must undergo a Functional Capacity Evaluation. In a chart note dated March 12, 1999, Dr. William Money concurred with Dr. Knox, stating that "I would strongly recommend that [claimant] have a functional capacity examination with electromyogram studies prior to any return to work. I think these are imperative to determine [claimant's] work capabilities and limitations." Based on the refusal of respondents to pay for this assessment, it was never done. The medical evidence is persuasive. Therefore, we specifically find that the performance of a Functional Capacity Evaluation is reasonably necessary. Accordingly, we affirm the Administrative Law Judge's award of a Functional Capacity Evaluation.
At the hearing, claimant contended that he was entitled to additional temporary total disability benefits. He further asserted that if he is not entitled to these benefits, he should be awarded benefits pursuant to Ark. Code Ann. § 11-9-505 (a) or (b) (Repl. 1996). In the alternative, claimant advanced the argument that he is entitled to an award of wage-loss benefits. As enumerated in the findings of the Administrative Law Judge, claimant received an open-ended award of temporary total disability benefits commencing on November 11, 1998. However, this portion of the Administrative Law Judge's decision must be vacated. Our resolution of this matter is premised on the Supreme Court's opinion in Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). In Gansky, claimant's treating physician ordered a Functional Capacity Evaluation so that he could assess claimant's ability to return to the work force. Respondents refused to pay the costs associated with the assessment, and claimant's physician never conducted a final evaluation. Under these circumstances, the court determined that it was error for the Commission to decide the issue of claimant's entitlement to temporary total disability benefits before the completion of a functional capacity evaluation. In our opinion, these cases are indistinguishable. The proper course of action would have been to reserve the remaining issues until after the Functional Capacity Evaluation was done.
Therefore, after conducting a de novo review of the record, we affirm the award of additional benefits in the form of a Functional Capacity Evaluation. However, the award of temporary total disability benefits must be vacated. Finally, we remand this case to the Administrative Law Judge. Following the performance of the Functional Capacity Evaluation, he is directed to make additional findings consistent with this opinion.
For prevailing in part on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
_______________________________
PAT WEST HUMPHREY, Commissioner
_______________________________ MIKE WILSON, Commissioner