Opinion
CLAIM NO. E506327
OPINION FILED MAY 19, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JAMES McLARTY, III, Attorney at Law, Newport, Arkansas.
Respondents represented by the HONORABLE ROBERT MONTGOMERY, Attorney at Law, Little Rock, Arkansas.
ORDER
The claimant moves the Commission to remand this matter to the administrative law judge for presentation of additional medical evidence. The respondents object to same. After considering the motion, response, and all other matters properly before it, the Commission denies the Motion to Remand.
The claimant sustained a workplace injury on April 17th, 1995, which the respondent accepted as compensable. Dr. Thomas Fletcher performed back surgery on the claimant in August, 1995. Following an April 8, 1996, examination of claimant, Dr. Fletcher opined that the claimant had a 10% whole body impairment but was not permanently disabled from returning to work activity. In December, 1996, Dr. Phillip Johnson opined that surgical fusion and stabilization would give the claimant her "best chance" for pain relief.
Based primarily on this medical evidence, the claimant requested additional TTD and additional medical benefits. The administrative law judge heard the matter on January 10, 1997 and filed an opinion on March 4, 1997. The administrative law judge found that the claimant failed to prove that she needed additional surgery. The claimant filed a Notice of Appeal of this decision on March 24, 1997.
On April 21, 1997, the claimant filed a Motion for Remand. She moves the Commission to remand the claim to the administrative law judge, so that he can consider additional evidence. The proposed additional evidence consists of March 15, 1997, correspondence from Dr. Roland Reynolds and April 14, 1997, correspondence from Dr. Johnson.
Ark. Code Ann. § 11-9-705 (c)(1) (Repl. 1996) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, the moving party must show that the new evidence is relevant; that it is not cumulative; that it would change the result of the case; and that she was diligent in presenting the evidence to the Commission. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); see also, Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982)
Even if this evidence is relevant, we find that the claimant has not diligently presented this evidence to the Commission. Claimant retained counsel on or about October 25, 1996, approximately two and one-half months before the hearing. In that regard, she had sufficient time to obtain the correspondence from Dr. Reynolds she now seeks to admit. The claimant has failed to show that she was unable to present this evidence at the initial hearing.
In the brief supporting her motion, the claimant states that the respondents did not fully provide all of the needed medical evidence. This matter came up at the hearing. However, the claimant stated on the record that she was comfortable in going ahead on the evidence submitted of record.
Accordingly, we deny the claimant's Motion for Remand.
IT IS SO ORDERED.
Commissioner Humphrey dissents.