Hill v. White-Rodgers

George K. Cracraft, Judge.

Tommy Hill appeals from an order of the Workers’ Compensation Commission adopting the findings and conclusions of the administrative law judge that his injury was a scheduled one which could not be apportioned to the body as a whole and that therefore wage earning factors could not be considered in addition to the functional loss as provided in Ark. Stat. Ann. § 81-1313(c) (Repl. 1976). He argues that the Commission erred in refusing to consider additional evidence not presented to the administrative law judge but proffered by the appellant on his appeal. We find no error.

In April 1979 the appellant sustained a crushing injury to his right foot while working for White-Rodgers. After a period of temporary total disability the appellant returned to work for appellee. Dr. H. Austin Grimes rated appellant’s permanent partial disability at that time at 15% to the right leg. Although the injury was to the foot, Dr. Grimes’ rating was based on his determination that the pain from the foot extended to the leg. Around the same time, Dr. Jerry L. Thomas rated his disability at 25% to the foot. Appellant was paid full permanent partial disability benefits by his employer for a 25% loss to the lower right extremity.

The appellant continued to experience difficulty because his foot injury caused pain to go up his leg into his hip and resulted in numbness to his leg. He changed jobs several times until he found employment which did not require him to be on his feet for prolonged periods, and at the time of the hearing in January 1983, he was employed at an hourly wage rate almost double what he was being paid at the time of his injury.

In December 1982, appellant had sought and obtained from Dr. Grimes a report that appellant had “5% or less permanent partial rating to the body as a whole.” By two subsequent reports Dr. Grimes clarified his earlier one in the following language:

The patient’s attorney requested that I rate him regarding the body as a whole. I then gave him a 5% PPPI rating as regards the body as a whole. It is not from a new injury. [Emphasis supplied]

This patient was given a 5% PPPI rating for his injury as it relates to the body as a whole, He was given a 15% PPPI rating for the same injury for how it relates to the leg as a whole. An injury to the foot affects the leg as a whole and at the same time affects the body as a whole. [Emphasis supplied]

All of the above reports were a part of the record before the administrative law judge.

At a hearing before the administrative law judge the claimant stated:

MR. FARRIS: It’s the claimant’s contentions, Judge, that the injury to the foot has now become under Dr. Grimes’ medical report, an injury to the body as a whole, and the claimant is entitled to be compensated for an injury to the body as a whole. Dr. Grimes gives him a 5% rating to the body as a whole, permanent partial injury.

JUDGE MAZZANTI: As I understand it, the claimant requests instead of the rating to the right lower extremity, a rating which has already been paid of 25%, the claimant is contending he’s entitled to the difference between the 25% to the right lower extremity and 5% to the body as a whole.

MR. FARRIS: Yes, sir, by his education, age and work experience.

The administrative law judge ruled that the injury to appellant’s lower extremity was a scheduled one and correctly denied the claim and ruled that absent a showing of total disability a scheduled injury cannot be apportioned to the body as a whole. Taylor v. Pfeiffer Plbg. & Htg. Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982); Clark v. Shiloh Tank & Erection Co., 259 Ark. 521, 534 S.W.2d 240 (1976); Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W.2d 82 (1972); Anchor Const. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972).

Shortly after the administrative law judge’s opinion was announced, the appellant filed a notice of appeal to the Commission in which he requested permission to brief and orally argue the matter and to supplement the record with additional medical evidence. Attached to his petition was the following one paragraph letter from Dr. Grimes to appellant’s attorney:

This is in regard to our telephone conversation of March 17, 1983. This gentleman’s rating was altered because his foot and leg pain altered his gait increasing the action and work of his back which aggravated his back condition as well. If any further information is needed please let me know.

The Commission entered an order denying the motion to submit additional evidence and stated that it found no reason to depart from the basic mandate of Ark. Stat. Ann. § 81-1327(c) (Supp. 1983) which provides that each party shall present all evidence at the initial hearing and a further hearing for the purpose of introducing additional evidence can be granted only in the discretion of the hearing officer or the Commission. In that order, the Commission recited that in reaching its decision on the motion it had been guided by the prerequisites set out in Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960) and Haygood v. Belcher, supra. The appellant then withdrew his request for briefs and oral arguments and submitted the matter to the Commission, which in a subsequent order affirmed the findings and conclusions of the administrative law judge.

In Haygood v. Belcher, supra, we declared that the Commission is vested with discretion in determining whether and in which circumstances a case appealed to it should be remanded for taking additional evidence and that their ruling will not be reversed on appeal unless there is an abuse of that discretion. In Haygood we determined that the Commission had not exercised its discretion in that case. In Haygood we reiterated the rules set out in Mason v. Lauck, supra, concerning when such a motion to present new evidence should be granted: 1) Is the new evidence relevant; 2) is it cumulative; 3) would it change the result; and 4) was the movant diligent?

Although it was argued in our conference of this case that Haygood and Mason are distinguishable from the matter now under review and that the Commission, in considering these criteria, acted arbitrarily, we do not address that issue because it was not argued in appellant’s brief. In fact the appellant concedes, and the majority here agree, that the Commission applied the right criteria. Appellant argues only that the Commission erred in its finding that the proffered evidence was not relevant. The maj ority adheres to the long es tablished and familiar rule of procedure that we do not consider points not advanced on appeal. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977); Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967). This rule has been applied with equal force to appeals from the Arkansas Workers’ Compensation Commission. Bradford v. Ark. State Hospital, 270 Ark. 99, 603 S.W.2d 896 (Ark. App. 1980); W. Shanhouse & Sons, Inc. v. Simms, 224 Ark. 86, 272 S.W.2d 68 (1954).

Appellant does argue that our prior decisions which limit a scheduled injury, except where there is total permanent disability, are inequitable and produce unfair results. He contends that we should reconsider this rule and that if we do so, the proffered evidence would be relevant. In view of the long line of cases which have held the adopted rule to be a clear mandate from the legislature, we decline to do so. We agree with the statement of Justice George Rose Smith in Intl. Paper Co. v. Remley, 256 Ark. 7, 505 S.W.2d 219 (1974), in which he said, “Of course the courts are bound by the legislature’s decision to adopt a rigid rule in the case of scheduled injuries.” Under our prior decisions the proffered evidence would not be relevant and could not change the result. We find no abuse of discretion in refusing to reopen the record where it is shown that such a procedure would be futile. Additionally, we note that the proffered evidence was merely cumulative of that previously submitted.

Appellant also argues that if we are unwilling to reconsider the established rule, we should hold that a scheduled injury “need not preclude a finding that another compensable injury, which is not a total permanent injury, may be found to exist and may be compensated for.” He argues that if proof could have been submitted to the Commission that appellant had suffered an unscheduled injury as a result of his scheduled one, his disability might have been apportioned to his body as a whole and contends that the proffered evidence was relevant for that purpose. The courts have already declared that where a worker has received a scheduled injury and subsequently receives an unscheduled one, he may be compensated for both, but other wage loss factors may be taken into consideration only with regard to the unscheduled one absent a finding of total disability. Clark v. Shiloh Tank & Erection Co., supra.

However, we find no merit to this argument. First, this argument was not made to the Commission and no contention was made before the administrative law judge that the claim was being made for a second, unscheduled injury. Appellant contended only that he had sustained a single injury to his lower extremity and that the pain resulting from it should be apportioned to his body as a whole. Nor does appellant’s one paragraph letter petition to the Commission raise that issue. It merely states that he wishes “to supplement the record” made before the administrative law judge. In all his previous reports Dr. Grimes had made it clear that there was no new injury and the proffered letter gave no indication of a claim on a second independent injury resulting from the scheduled one or the extent of any resulting disability on which the Commission might have based a finding. Although this point was also argued in our conference the majority adheres to the well established rule that grounds for relief cannot be asserted for the first time on appeal and that this rule applies to appeals from the Workers’ Compensation Commission. Ashcraft v. Quimby, 2 Ark. App. 332, 621 S.W.2d 230 (1981); Jeffery Stone v. Lester H. Raulston, 242 Ark. 13, 412 S.W.2d 275 (1967).

Affirmed.

Mayfield, C.J., and Cooper and Corbin, JJ., dissent.