W.W.C. Bingo v. Zwierzynski

W.W.C. BINGO v. Sandra ZWIERZYNSKI

CA 95-541                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered May 22, 1996


1.   Workers' compensation -- challenge to sufficiency of evidence
     -- factors on review. -- When reviewing a decision of the
     Workers' Compensation Commission, the court views the evidence
     and all reasonable inferences deducible therefrom in the light
     most favorable to the findings of the Commission and affirms
     that decision if it is supported by substantial evidence; the
     weight and credibility of the evidence is exclusively within
     the province of the Commission; the issue is not whether the
     court might have reached a different result or whether the
     evidence would have supported a contrary finding; if
     reasonable minds could reach the Commission's conclusion, its
     decision must be affirmed.

2.   Workers' compensation -- records supported Commission's
     findings -- Commission's award of benefits affirmed. --    
     Where the medical records clearly supported the Commission's
     findings that appellee suffered an injury to her back and legs
     when she fell on July 11, 1991; that her back pain radiated
     into both legs at one time or another; that the initial
     program of physical therapy afforded appellee no relief from
     the pain; that the facet-joint injection relieved all of
     appellee's symptoms; and that she was released to return to
     work in November 1991, with no permanent impairment, the
     appellate court affirmed the Commission's holding that
     appellee was entitled to temporary, total disability benefits
     from July 11, 1991, through November 26, 1991. 

3.   Workers' compensation -- Commission has broad discretion in
     admission of evidence -- no abuse of discretion found. -- 
     Where the law judge sustained a hearsay objection to certain
     testimony and stated that he would not allow appellant even to
     proffer it because it was clearly hearsay, appellant's
     complaint about the ruling was without merit; the Commission
     has broad discretion with reference to the admission of
     evidence; the appellate court found no abuse of discretion
     regarding the ruling on the admission of this evidence.

4.   Evidence -- proffer of -- trial court has limited discretion
     in refusing to permit counsel to proffer evidence. -- Even a
     trial court has very limited discretion in refusing to permit
     counsel to proffer evidence; its only discretion is in
     controlling the form of the proffer and the time at which it
     is to be made.

5.   Evidence -- proffer of -- refusal to allow proffer discussed.
     -- It has generally been held to be error to refuse counsel
     the right to make a proffer of evidence excluded by the court;
     a tender of proof is required to advise the trial court of the
     nature of the evidence so that the trial court can
     intelligently consider it, as well as to have the excluded
     evidence in the record for purposes of appellate review; if a
     trial court can arbitrarily deny to counsel the right to
     dictate into the record their offer of proof, it can prevent
     any consideration upon appeal regarding the correctness of its
     own ruling concerning the exclusion of certain evidence;
     A.R.E. Rule 103 specifically provides that the trial court may
     control the form of the proffer; it may also decide when the
     proffer is to be made; there may be circumstances in which the
     trial court is justified in rejecting a proffer such as where
     the request to tender proof is untimely or where the tendered
     proof is clearly repetitious.   

6.   Workers' compensation -- appellant had responsibility to
     obtain ruling by Commission -- appellate court would not
     consider issue. -- Where the Commission's opinion did not
     mention the issue, the appellate court would not consider it;
     it was the appellant's responsibility to obtain a ruling on
     the issue by the Commission. 

7.   Workers' compensation -- administrative law judge should have
     allowed proffer of evidence -- refusal to allow proffer
     harmless error. -- While the actions of the administrative law
     judge in denying the appellant the opportunity to proffer
     certain videotapes was error, problems with the evidence
     rendered this error harmless; first, the medical evidence in
     the record clearly supported the finding that appellee
     sustained a compensable injury for which she was entitled to
     compensation, and evidence that appellee had worked at times
     would not nullify the medical evidence; second, while
     appellant mentioned in its notice of appeal to the Commission
     that the administrative law judge did not consider all
     evidence presented by respondent, appellant failed to obtain
     a ruling on this issue; and there was no authentication of the 
     videotapes appellant attempted to proffer; the exclusion of
     the tapes was not reversible error.


     Appeal from the Arkansas Workers' Compensation Commission;
affirmed.
     Murrey L. Grider, for appellant.
     John Bartlett, for appellee.

     Melvin Mayfield, Judge.*ADVREP*CA3*
                           DIVISION II



                                        CA 95-541


                                             MAY 22, 1996


W.W.C. BINGO                       AN APPEAL FROM THE ARKANSAS
                                   WORKERS' COMPENSATION 
               APPELLANT           COMMISSION

VS.                                     
                                        
SANDRA ZWIERZYNSKI                 AFFIRMED

               APPELLEE




                     Melvin Mayfield, Judge.


     This is the second appeal in this workers' compensation case
involving a claimant/appellee and an uninsured employer/appellant. 
In the first appeal the only issue was compensability.  The
Commission had held that appellee had sustained a compensable
injury and was entitled to workers' compensation benefits.  We
affirmed the Commission's decision.  After another hearing the
appellee was awarded temporary total disability benefits from July
11, 1991, through November 16, 1991, medical expenses, and
attorney's fees.  On appeal the appellant/employer argues:
     I.   "WHETHER OR NOT THE APPELLEE SUFFERED AN INJURY TO
     THE EXTENT AND NATURE AS SHE CLAIMED."

     II.  "THE COMMISSION ERRED IN UPHOLDING VARIOUS DISCOVERY
     AND EVIDENTIARY RULINGS BY THE ADMINISTRATIVE LAW JUDGE."

     The appellee was injured while selling bingo cards on the
floor of appellant's bingo parlor.  On July 11, 1991, she was
running from one side of the room to the other, and something slick
on the floor caused her to fall.  This injured her back and leg. 
At the second hearing the appellant contended, even though this
court had said appellee sustained a compensable injury and was
entitled to workers' compensation benefits, that appellee was
entitled only to the medical expenses incurred at the emergency
room on July 12, 1991, and that all other medical expenses after
that date were not reasonable or necessary.       
     Medical records from St. Bernard's Regional Medical Center
show that on July 12, 1991, appellee reported she had fallen at
work the night before and injured her back and knee.  X-rays were
made on both of appellee's knees, her pelvis, and her lumbar spine. 
On July 16 a CT scan was performed and on July 20 an MRI was
performed.  All were essentially normal.
     Dr. Steven C. Golden, appellee's family doctor, sent appellee
to the Northeast Arkansas Rehabilitation Hospital for physical
therapy, and after eleven sessions she was continuing to have
significant discomfort but was discharged from physical therapy on
September 23, 1991.  On October 1, 1991, appellee was admitted to
St. Bernard's Regional Medical Center for a lumbar myelogram and
post-myelogram CT scan.  They were both normal.  Dr. Golden's
office notes of October 15, 1991, state that appellee was to get a
"facet joint injection on Friday at 11:30 by Dr. Tyrer at Methodist
Hospital x-ray," and on October 21, 1991, the notes reveal that
appellee was to restart physical therapy, including the wearing of
a TENS unit.
     A letter to Dr. Golden from Dr. A. Roy Tyrer, Jr., a Memphis
neurological surgeon, dated October 22 states:
     As you have requested, on October 18, 1991 this lady was
     given a right lower lumbar facet block at the L3-4, L4-5,
     and L5-S1 disc levels under x-ray localization at
     Methodist Hospital of Jonesboro on an outpatient basis.

     She tolerated the injection well.  I am very hopeful it
     will help her chronic back and right leg symptoms.

     Appellee began physical therapy again on October 28, 1991, had
a second treatment on October 30, and did not return for further
treatments.  On November 26, 1991, Dr. Golden wrote a letter to
appellee's attorney stating: 
     Ms. Zwierzynski was in to see me on November 26, 1991. 
     At that time she indicated she was doing well and not
     having pain at the present time.  Her strengthening
     exercises have helped dramatically build the strength in
     her leg.  She is now back to baseline, perhaps maybe even
     a little stronger than prior to her accident.  She is
     looking forward to going back to work, and I have
     released her to do so.

     Appellant's first argument challenges the sufficiency of the
evidence.  When reviewing a decision of the Workers' Compensation
Commission, we view the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the findings of
the Commission and affirm that decision if it is supported by
substantial evidence.  Clark v. Peabody Testing Service, 265 Ark.
489, 579 S.W.2d 360 (1979).  The weight and credibility of the
evidence is exclusively within the province of the Commission. 
Morrow v. Mulberry Lumber, 5 Ark. App. 260, 635 S.W.2d 283 (1982). 
The issue is not whether we might have reached a different result
or whether the evidence would have supported a contrary finding; if
reasonable minds could reach the Commission's conclusion, we must
affirm its decision.  Bearden Lumber Company v. Bond, 7 Ark. App.
65, 644 S.W.2d 321 (1983).  
     Appellant argues that "A lumbar strain should not generate any
pain into the leg and any treatment for problems with [appellee's]
leg should not be the responsibility of Appellant."  Although
appellee testified she hurt her knees and back when she fell and
that one time after her fall, she got out of her car and her right
leg "gave out on" her, the medical evidence does not indicate
appellee was receiving treatment solely for a leg injury.  The
physical therapy may have included some leg strengthening exercises
but the main thrust of the treatment was for an injury to
appellee's back. 
     Furthermore, Dr. Golden's medical records clearly document
pain radiating into the leg from appellee's back injury.  On July
15, August 5, September 30, and October 15, Dr. Golden's notes
indicate that appellee was complaining of back pain and leg pain. 
     We think the medical records clearly support the Commission's
findings that appellee suffered an injury to her back and legs when
she fell on July 11, 1991; that her back pain radiated into both
legs at one time or another; that the initial program of physical
therapy afforded appellee no relief from the pain; that the facet
joint injection relieved all of appellee's symptoms; and that she
was released to return to work in November 1991, with no permanent
impairment.  Therefore, we affirm the Commission's holding that
appellee is entitled to temporary, total disability benefits from
July 11, 1991, through November 26, 1991. 
     The appellant also complains about certain evidentiary rulings
made by the administrative law judge.  One of appellee's relatives
testified that another member of the family had told her that
appellee was swimming and dancing the weekend after her injury. 
The law judge sustained a hearsay objection to this testimony and
stated that he would not allow appellant to even proffer it since
it was clearly hearsay.  However, the testimony was not stricken
from the record and, therefore, the proffer issue is moot. 
Moreover, the Commission has broad discretion with reference to the
admission of evidence, Linthicum v. Mar-Bar Shirt Co., 23 Ark. App.
26, 741 S.W.2d 275 (1987), and we find no abuse of discretion as to
the ruling on the admission of this evidence.  
     The owner of the appellant W.W.C. Bingo attempted to introduce
into evidence the affidavit of a man stating that the appellee had
done housecleaning for him on November 14, 1991.  This document was
not allowed into evidence but it was proffered.  Through the same
witness, appellant also attempted to introduce three videotapes. 
One purportedly showed appellee cleaning a Western Sizzlin Steak
House in January, 1992, and the witness said she was present when
it was taken.  This videotape was introduced into evidence.  The
witness testified that the other two videotapes, which apparently
contained statements by four people in appellee's family that
discuss situations where appellee was working, were taken after the
previous hearing.  Appellant's counsel said he had attempted to
subpoena these witnesses, but he was unable to locate them.  The
administrative law judge refused to allow appellant to even proffer
these videotapes, stating, "I think even as a proffer it's
improper."   
     Appellant argues that although this evidence was hearsay, the
rules of evidence do not apply to workers' compensation hearings,
and that the videotapes showed how appellee was attempting to
defraud the appellant and Commission, and would have attacked her
credibility, citing Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982).  As appellant correctly points out, even a trial
court has very limited discretion in refusing to permit counsel to
proffer evidence; its only discretion is in controlling the form of
the proffer and the time at which it is to be made.  Sitz v. State,
23 Ark. App. 126, 743 S.W.2d 18 (1988).
     This issue has been thoroughly discussed in the context of a
chancery case.  In Jones v. Jones, 22 Ark. App. 267, 739 S.W.2d 171
(1987), where a proffer of evidence had been refused, we said:
          Although the issue apparently has never arisen in
     this state, courts generally have held that it is error
     to refuse counsel the right to make a proffer of evidence
     excluded by the court. State v. Shaw, 90 N.M. 540, 565 P.2d 1057 (1977); State v. Davis, 155 Me. 430, 156 A.2d 393 (1959); Ex parte Fields, 382 So. 2d 598 (Ala. 1980);
     Hendrix v. Byers Bldg. Supply, Inc., 167 Ga. App. 878,
     307 S.E.2d 759 (1983). In State v. Shaw, an objection on
     grounds of relevancy was sustained, after which the trial
     court refused to permit the defendant to proffer the
     excluded evidence. The New Mexico court held that the
     right to proffer evidence which has been excluded by
     ruling of the court is almost absolute. The court said:

          Why is a tender of proof required? One reason
          is to advise the trial court of the nature of
          the evidence so that the trial court can
          intelligently consider it....

          Another reason is to have the excluded
          evidence in the record for purposes of
          appellate review. If a trial court can
          arbitrarily deny to counsel the right to
          dictate into the record their offer of proof,
          he can prevent any consideration upon appeal
          as to the correctness of his own ruling as to
          the exclusion of certain evidence. It is
          obvious that this cannot be the law.
          (Citations omitted.)

          The trial court may certainly maintain control of
     the proceedings. A.R.E. Rule 103 specifically provides
     that the trial court may control the form of the proffer.
     He may also decide when the proffer is to be made. There
     may be circumstances in which the trial court is
     justified in rejecting a proffer. The examples given by
     the New Mexico court are where the request to tender
     proof is untimely or where the tendered proof is clearly
     repetitious. 

22 Ark. App. at 269-70, 739 S.W.2d  at 172-73.  
     While we certainly cannot approve of the actions of the
administrative law judge in denying the appellant the opportunity
to proffer this evidence, we find several problems with the
evidence which render this error harmless.  
     First, the medical evidence in the record clearly supports the
finding that appellee sustained a compensable injury for which she
was entitled to compensation, and we do not believe that evidence
that appellee had worked at times would nullify the medical
evidence.  Second, while appellant mentioned in its notice of
appeal to the Commission that "the Administrative Law Judge did not
consider all evidence presented by Respondent," the Commission's
opinion does not mention this issue.  It was the appellant's
responsibility to obtain a ruling on this issue by the Commission,
Barnes v. Pearson Termite and Pest Control, Inc., 266 Ark. 635,
642-43, 587 S.W.2d 823, 827 (1979).  A question not passed upon
below presents no question for decision here.  North River Ins. Co.
of New York v. Thompson, 190 Ark. 843, 846, 81 S.W.2d 19, 20
(1935).  And, finally, there was no authentication of these
videotapes.  It isn't clear who made the tapes, and, in fact, even
the witness by whom appellant sought to introduce the tapes was not
sure who the people were who were on the tapes.  Under these
circumstances, we cannot find that the exclusion of the tapes was
reversible error.
     Affirmed.
     Griffen, J., agrees.  
     Pittman, J., concurs.