dissenting. The majority of the court has today refused to grant the petition for rehearing filed by the appellees in this case. The original opinion, Wooten v. Arkansas Alum. Window & Door, Inc., 17 Ark. App. 209, 706 S.W.2d 198 (1986), was handed down by a division of this court, but under Ark. Stat. Ann. § 22-1211 (Supp. 1985), petitions for rehearing are decided by the court en banc. I dissent from the refusal to grant rehearing because I think the original opinion grants an administrative law judge procedural discretion in excess of that allowed the full Commission itself.
John Wooten, appellant in this court, filed a claim with the Commission on July 20, 1984, by letter from his attorney which requested “that this matter be set for a hearing at the earliest convenience of the Commission on the issues of permanent and temporary total disability.” (Emphasis added.) A hearing was held by an administrative law judge on October 11, 1984, at which counsel for Wooten contended his client was entitled to payment of medical expenses, temporary disability benefits, and “either permanent partial or permanent and total disability, minimum of twenty-five percent permanent partial.” The employer’s counsel denied that Wooten was entitled to an award for any of these benefits.
At the conclusion of the hearing, the law judge took the matter under advisement subject to the introduction of a report from Dr. John Wilson, which was subsequently submitted, and the depositions of two other doctors, provided the parties notify him within 15 days that the depositions had been scheduled. The depositions were not taken, and on January 2,1985, the law judge filed his opinion finding Wooten entitled to payment of all reasonable and necessary medical expenses; that he was not entitled to temporary total benefits since he had drawn full salary during the healing period; and that the record was “not sufficiently developed to make a finding as to permanent disability.”
Wooten filed notice of appeal to the full Commission stating the law judge’s decision was contrary to the facts and the law. He also filed a motion to submit additional evidence to the full Commission. The motion was denied, the law judge’s decision as to temporary total disability was affirmed, and Wooten’s “claim for permanent partial disability benefits” was denied and dismissed. In discussing this matter, the Commission said that the law judge erred in holding that the record was “not sufficiently developed to make a finding as to permanent disability.” The Commission found there was sufficient evidence to make a finding on that issue, and held that Wooten failed to prove by a preponderance of the evidence that he was entitled to permanent disability benefits. Pointing out that counsel for appellant admitted, on oral argument before the Commission, that all the “additional” evidence he wanted to submit had been obtained after the law judge’s decision, the Commission said:
It is obvious that counsel for Wooten simply read the decision of the Administrative Law Judge and realized that his client had failed to prove by a preponderance of the evidence that he was entitled to permanent disability benefits. He then began gathering evidence to prove that contention. Instead of deciding the case on the evidence, the Administrative Law Judge virtually became mentor for Wooten and left the record open for “additional evidence.” Counsel for Wooten, like anybody faced with a second chance to make a case, lost no time in submitting “additional evidence.”
In reversing the full Commission’s decision, the opinion of the panel of this court found that the law judge “should have the power and discretion to reserve his or her decision on a related issue which might be affected by any additional evidence.” Ark. Stat. Ann. § 81-1327(c) (Supp. 1985) is cited in support of the court’s statement. See 17 Ark. App. at 211. However, I think this view overlooks the point involved.
Although section 81-1327(c) does provide that evidence, in. addition to that presented at the initial hearing, may be presented “at the discretion of the hearing officer or Commission,” the issue here is whether, on the facts of this case, this court should reverse the full Commission for holding that the law judge erred in reserving the question of permanent disability which had been submitted to him. The Commission was considering a law judge’s opinion that indicated he thought a myelogram would be helpful in determining the question of permanent disability, but no one had requested his permission to introduce this additional evidence and Wooten had refused to take a myelogram. Even at the hearing, Wooten said he would take one only “if I get worse; because now I can get around.” While I would concede that a law judge has some inherent power that would allow him or her to reserve decision on an issue that has not been sufficiently developed by the evidence, surely that power must be exercised with discretion. Under the facts, I submit the Commission was justified in finding that the law judge abused his discretion in this case. To hold otherwise, it seems to me, is to simply substitute our judgment for that of the Commission. After all, “It is just as important that the judiciary respect the province of the Workmen’s Compensation Commission as it is that we observe the boundary between the legislative and judicial departments of government.” Oak Lawn Farms v. Payne, 251 Ark. 674, 474 S.W.2d 408 (1971).
I would not, however, simply affirm the Commission’s decision. I would remand this matter to the Commission with directions that it remand the matter to a law judge for a decision on the permanent disability question based on the record as it existed on January 2,1985, which was the day the opinion of the law judge was filed in this case. The Commission’s opinion states that this decision should have been made by the law judge on the record before him on that day. Indeed, there was a doctor’s report in the record before the law judge that gave Wooten a 25% anatomical impairment to the body as a whole. Thus, the judge should have the opportunity to apply his knowledge of industrial demands, limitations and requirements to the evidence. See Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).
I dissent from the denial of the appellees’ motion for rehearing.