Harper v. Hi-Way Express

Judith Rogers, Judge,

concurring. I concur in the majority’s decision to remand this case back to the Commission. However, I believe that the case should be remanded back for the Commission to make specific findings of fact upon which it relied in making its decision.

Here, the Commission affirmed the administrative law judge’s decision, adopting it as its own. The ALJ denied benefits quoting Dr. James Cutler as saying:

If I must give a percentage rating in view of the paucity of objective findings, I would give him a 5 percent rating.

The ALJ then quoted a medical report prepared by Dr. John Harris:

Mr. Harper remains totally disabled for his previous occupation as a truck-driver as well as any non-sedentary work that requires no bending, lifting, pulling or pushing. He has approximately 10% disability to the body as a
whole, accounting for his low back limitation and pain.

The ALJ concluded with this statement:

After reviewing the other medical documents and in considering the provisions of Ark. Code Ann. § ll-9-704(c)(l), I find that the ratings assigned to the claimant are not based upon objective and measurable findings.

The Commission’s duty is to translate the evidence on all issues before it into findings of fact. Sanyo Manufacturing, Inc. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984). Although the Commission may specifically adopt the findings of fact made by the ALJ, here the ALJ failed to make the necessary findings of fact to allow review. The ALJ merely summarized the testimony of two witnesses and referred to “other” unidentified evidence. I am unable to determine, as the majority does, the factual basis upon which appellant’s claims were denied. There may be evidence in the record to support the Commission’s decision; however, neither the ALJ nor the Commission made the required findings. The majority concedes this fact in its statement “[i]t is not clear as to what the findings of the Commission were which could constitute a basis for this conclusion.” However, the majority reviews the case de novo and makes findings of fact that the Commission disregarded “the reports and opinions of these medical doctors because the Commission does not consider positive straight leg raises to constitute objective physical findings.” This court does not review decisions of the Commission de novo on the record or make findings of fact. Wright v. American Transportation. 18 Ark. App. 18, 709 S.W.2d 107 (1987). Therefore, I would reverse and remand this case to the Commission to make those specific findings of fact upon which it relied in making its decision.