Opinion
CLAIM NO. E814677
ORDER FILED JANUARY 4, 2006
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by Hon. Mike Hamby, Attorney at Law, Greenwood, Arkansas.
Respondent No. 1 represented by Hon. Jason T. Browning, Attorney at Law, Fort Smith, Arkansas.
Respondent No. 2 represented by Honorable David Pake, Attorney at Law, Little Rock, Arkansas.
Respondent No. 3 represented by Honorable Judy Rudd, Attorney at Law, Little Rock, Arkansas.
ORDER
Presently before the Commission is Respondent No. 1's Motion for Consideration of New Evidence or in the Alternative Motion for Remand. After consideration of respondent no. 1's motion, the responses filed thereto and all other matters properly before the Commission, we find that the motion must be denied.
A hearing was held on May 23, 2005, to determine, among other things, whether the claimant was entitled to additional temporary total disability benefits and additional medical benefits. In an opinion filed June 17, 2005, the Administrative Law Judge found that the claimant was entitled to additional temporary total disability benefits from March 10, 2000, and continuing through a date yet to be determined as well as additional medical treatment including but not limited to a Functional Capacity Evaluation as recommended by Dr. Capocelli. Respondent no. 1 filed a Notice of Appeal from the Administrative Law Judge's decision. In its motion, respondent no. 1 seeks to have the results of the Functional Capacity Evaluation considered on appeal or to have the claim remanded to the Administrative Law Judge for consideration of this new evidence.
In Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982) the Court of Appeals sets forth the prerequisites for consideration by the Full Commission of newly discovered evidence: (1) The newly discovered evidence must be relevant; (2) it must not be cumulative; (3) it must change the result; and (4) the party seeking to introduce the evidence must be diligent. As explained in respondent no. 1's motion, the Functional Capacity Evaluation was not available at the time of the hearing as it was only conducted after the Administrative Law Judge ordered the evaluation in his June 17, 2005, opinion. Respondent no. 1 further contends that the evidence is relevant in that it is necessary for purposes of determining the claimant's entitlement to additional temporary total disability benefits. However, as we review the submitted evidence, we find that this piece of evidence does not satisfy the Haygood requirements. This evidence speaks more to the claimant's abilities on July 14, 2005, when it was conducted, it does not speak to the issues presently on appeal; that is whether the claimant is entitled to additional temporary total disability benefits from the date such benefits were cut off and continuing through the end of the claimant's healing period, a date that has yet to be determined by the Commission. As noted by counsel for claimant, the Administrative Law Judge's award only addresses the status of the case up through the date of the decision. Accordingly, we find that the newly discovered evidence is not admissible on appeal and that it is not necessary to remand this claim to the Administrative Law Judge. This is not to say, however, that respondent no. 1 cannot rely upon this new evidence in reaching a determination as to the date respondent no. 1 contends that the claimant's healing period has ended for the purposes of ceasing payment of temporary total disability benefits. As noted by the claimant in his response, this is a new and separate issue.
IT IS SO ORDERED.
_______________________________ OLAN W. REEVES, Chairman
_______________________________ SHELBY W. TURNER, Commissioner
_______________________________ KAREN H. McKINNEY, Commissioner