Opinion
CLAIM NO. F603906
OPINION FILED NOVEMBER 16, 2007
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the Honorable Gary Davis, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by the Honorable Michael Ryburn, Attorney at Law, Fort Smith, Arkansas.
ORDER
This case comes before the Full Commission on claimant's Motion for Introduction of Additional Evidence or Remand for the purposes of Taking Additional Evidence. After consideration of the claimant's motion, respondent's response thereto, and all other matters properly before the Commission, the claimant's motion must be denied.
Claimant seeks the introduction of a letter received by him from a witness, Lori King, at the hearing before the Administrative Law Judge. The hearing was held on January 31, 2007 and the case is currently pending an appeal before the Full Commission. The hand written letter is dated September 28, 2007. The letter suggests that Lori King was paid by the respondent business to give false testimony regarding the claimant's employment status because she says she would testify against the claimant.
In order to admit new evidence not submitted at the hearing, claimant must meet certain prerequisites. Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982) sets forth the prerequisites for remand by the Full Commission on proffer to present 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.
The newly discovered evidence is relevant to the issue of whether the claimant was employed at the business, since this is the issue this witness testified about. This evidence is not cumulative. The claimant was diligent, since he just discovered this after the case was decided by the Administrative Law Judge.
This letter however does not appear to change the result. The Administrative Law Judge found the claimant was not performing employment services when he was injured. This witness did not testify about that issue since she did not witness the accident, nor did she offer any evidence about employment services since she testified he didn't work there. The Administrative Law Judge did not rely on this witness's testimony to decide this case.
In denying this claim, the Administrative Law Judge found:
The preponderance of credible evidence shows that the claimant had just arrived at work and parked his car in an area where he had no job duties. He had only taken two or three steps when the accident happened. Simply having an accident on the premises does not make the injury compensable.
Accordingly, we find that the claimant has failed to demonstrate that the newly discovered evidence meets all of the required prerequisites ofHaygood v. Belcher, Supra. This motion must be denied.
IT IS SO ORDERED.
____________________________ OLAN W. REEVES, Chairman
Commissioner McKinney concurs.
I agree that the this newly discovered evidence will not change the results of this claim as the Administrative Law Judge did not rely upon her testimony in finding that the claimant was not performing employment services at the time he was injured. I write separately because I simply cannot agree with the majority opinion stating that this letter suggests that Lori King was paid to give false testimony. This letter states in its entirety:
I Lori King will testify that Linda Groeteke in association w/ Ricky Jones and Rick's express paid me 150.00 to testify against Jimmy Morara in court of 06.
I simply do not read or interpret this letter as an admission of perjury. Ms. King merely admits to being paid to testify; she does not admit or allude to perjury in any manner. To reach such a finding on this letter alone would require impermissible speculation and conjecture. The only fact that this letter admits is that Ms. King was paid to testify. One can speculate that she was paid to lie, or that she was paid for her time, travel and inconvenience. Nevertheless, it has long been held that conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991).Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970).Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
___________________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.
I must respectfully dissent form the Majority's opinion, denying the claimant's Motion to Introduce Additional Evidence. The claimant specifically seeks to introduce a letter from Lisa King, a witness who testified on the respondent's behalf at the hearing, which stated that the respondents paid her $150 for her to testify against the claimant. The Majority found that this evidence is not cumulative nor does it change the outcome of the case. I find that this newly discovered evidence does change the outcome of the case and therefore should be admitted into evidence. As such, I must respectfully dissent.
The claimant testified that on February 18, 2006 he fell on ice in the parking lot and was helped to his feet by a customer, Jerome Clark. The claimant stated he had just parked his car and was on his way to the trash cans before he entered the store when the accident happened. The claimant reported the incident to "Carla", the manager who assumed H. J.'s job after he departed. The claimant continued working but his arm pain worsened. Two or three days later the claimant complained of arm pain while he was unloading a truck and was fired.
Assistant manager, Lori King, testified that Mr. Winslow's employment ended shortly before the accident. Mr. Winslow told her the claimant would no longer be allowed to charge items at the store. Ms. King interpreted this as an indication that the claimant was no longer an employee. Ms. King testified that there would be no need for the claimant to empty the trash cans the first thing in the morning anyway. Ms. King stated that she allowed the claimant to charge cigarettes on her account since he no longer had an account with the store. However, this does not explain why the claimant was in possession of a February 10, 2006 charge ticket. Ms. King thought Mr. Winslow paid the claimant with his own personal funds but there is no proof of this. Ms. King acknowledged that the claimant reported an accident on the parking lot which is leased from Mr. Bunker.
The Administrative Law Judge relied on the testimony of the claimant, Mr. Jerome Clark (a witness for the claimant), and Ms. King in finding that even though the claimant sustained a left shoulder injury, a rotator tear, after a slip and fall in the parking lot, he did not sustain a compensable injury due to the fact that the claimant was not performing employment services at the time of the accident. The claimant now seeks to introduce evidence that Ms. King was paid by the respondents to lie at the hearing.
Ark. Code Ann. ( 11-9-705(c)(1) (Repl. 2002) provides that all evidence must be submitted at the initial hearing on the claim. In Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982) the Arkansas Court of Appeals set forth the prerequisites for remand by the Full Commission on proffer to present 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.
First, the claimant was diligent in seeking to introduce the new evidence. The hearing was held January 31, 2007 and the Administrative Law Judge issued her opinion on May 2, 2007. On October 3, 2007, a noted dated September 28, 2007 was received in the office of counsel for the claimant. The claimant filed a Motion to Introduce Additional Evidence on October 17, 2007. It is therefore evident that the claimant was diligent in seeking to introduce additional evidence.
Second, the newly discovered evidence is relevant and not cumulative. The new evidence reveals that the respondents paid a witness to deliberately lie under oath in court. Not only did the witness perjure herself, but the new evidence strikes directly at the heart of the respondent's only witness, thereby destroying any credibility which they may have established.
Third, the new evidence changes the outcome of the case. The Administrative Law Judge relied on Lori King's testimony that the claimant was not performing employment services at the time of the accident. Ms. King testified that the claimant could not have been taking out the trash that morning because she herself had taken the trash out the night before. Now Ms. King admits to lying, and it is apparent that the claimant was performing employment services at the time of the accident. As such, this new evidence changes the outcome of the case.
Therefore, I find that this newly discovered evidence changes the outcome of the case and the claimant's Motion to Admit Additional Evidence should have been granted.
For the aforementioned reasons, I respectfully dissent.
____________________________ PHILIP A. HOOD, Commissioner