Opinion
CLAIM NO. F313430
ORDER FILED MARCH 27, 2007
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE BYRON COLE RHODES, Attorney at Law, Hot Springs, Arkansas.
Respondents represented by the HONORABLE GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas.
ORDER
Presently before the Commission is respondents' motion to strike attachments to the claimant's brief on appeal. After considering the motion, claimant's response, and all other matters properly before the Commission, we find that the respondents' motion should be granted.
In an opinion filed January 9, 2007, an administrative law judge found that the claimant failed to prove he sustained a compensable injury. In a pre-hearing order filed on August 1, 2006, prior to the hearing, the administrative law judge ordered all parties to submit evidence to be introduced at the hearing. The administrative law judge's order further stated there would be no evidence admitted after the hearing had concluded.
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 order to submit new evidence, the claimant must show that the new evidence is relevant; that it is not cumulative; that it would change the result of the case; and that the claimant was diligent in presenting the evidence to the Commission. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).
The Commission has broad discretion with reference to admission of evidence and our decision will not be reversed absent a showing of abuse of that discretion. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979); W.W.C. Bingo v. Zwierzynski, 53 Ark. App. 288, 921 S.W.2d 954 (1996); Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987); Southwest Pipe and Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984). In Belcher, supra, the Court of Appeals set forth the prerequisites for admission of newly-discovered evidence: (1) the newly-discovered evidence must be relevant; (2) it must not be cumulative; (3) it must change the result of the case; and (4) the party seeking to introduce the evidence must be diligent.
In the present matter, both the claimant and the respondents introduced evidence at the hearing. The claimant should have made certain his newly-discovered attachments were introduced at the hearing. The claimant did not do so. We find that the claimant has not proved the elements necessary to allow the introduction of additional evidence in this claim. Further, the claimant was not diligent in presenting this evidence to the Commission. All of the attachments the claimant now seeks to introduce were dated well before the hearing before the administrative law judge.
Accordingly, respondents' motion to strike the attachments to the claimant's brief filed on March 7, 2007 is hereby granted. Claimant's request to submit these attachments as evidence on appeal is hereby denied.
IT IS SO ORDERED.
_________________________ OLAN W. REEVES, Chairman
_________________________ KAREN H. McKINNEY, Commissioner
Commissioner Hood dissents.