CLAIM NO. E610430
Before the Arkansas Workers’ Compensation Commission
ORDER FILED FEBRUARY 23, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant appeared Pro Se.
Respondent represented by WILLIAM FRYE, Attorney at Law, Little Rock, Arkansas.
[1] ORDER[2] This matter is currently before the Commission on the claimant’s motion to remand the matter to the Administrative Law Judge and also his motion to hold his appeal to the Court of Appeals in abeyance. Based upon our review of the record, we would deny the claimant’s motions. [3] On August 4, 1998, the Administrative Law Judge found that the claimant had failed to prove a causal connection between his present symptoms and his compensable injury. The Administrative Law Judge found that further medical treatment was unreasonable and unnecessary and that the respondents had paid all appropriate medical and indemnity benefits related to the claimant’s compensable injury. Claimant appealed this decision to the Full Commission. On November 5, 1998, the Commission affirmed and adopted the Administrative Law Judge’s opinion. On November 30, 1998, the claimant filed a Notice of Appeal with the Commission to appeal his case to the Arkansas Court of Appeals and on November 30, 1998, he also filed a motion to remand this case to an Administrative Law Judge to present additional evidence. [4] On December 11, 1998, the claimant filed a letter with the Commission Clerk’s office asking for a “Supplement to a Motion to Remand to Administrative Law Judge Level.” On December 23, 1998, the Clerk’s office sent a letter to the claimant who is representing himself pro se, and to the respondent’s attorney, Mr. William Frye, asking for written clarification from the claimant as to what he was wanting to do with respect to his Motion to Remand to the Administrative Law Judge. On January 6, 1999, the claimant sent a letter to the Clerk’s office asking that the matter be remanded back to the Administrative Law Judge in order to allow him to present evidence that there was a causal connection between his headaches and chest pain and the original compensable injury. The claimant also contended that the respondents and the physicians violated Ark. Code Ann. §11-9-508(a). On February 4, 1999, the Clerk’s office sent another letter to the claimant and the respondent’s attorney stating that the claimant had filed a Motion to Remand as well as a request to hold his appeal to the Court of Appeals in “limbo.” On February 9, 1999, Mr. Frye sent a letter back to the Clerk of the Commission and to the claimant stating that he felt it was improper for the matter to be remanded back to the ALJ for additional evidence and that the claimant was provided with all the necessary medical treatment. Further, Mr. Frye stated that the appeal was with Arkansas Court of Appeals which was the proper place for it to be. [5] In our opinion, the Commission does not have the authority to hold an appeal to the Court of Appeals in “limbo.” The Commission does not have the authority to dismiss an appeal to the Court of Appeals. Pursuant to Arkansas Rule of Appellate Procedure 3B, this Commission can dismiss an appeal to the Court of Appeals only if the motion to dismiss is filed with the Commission before the record is docketed with the Court, and ifall parties to the appeal petition for dismissal and jointly stipulate that the case is to be dismissed. Seealso, In Re Arkansas Rules of Appellate Procedure3B, 296 Ark. 580, 756 S.W.2d LXXV (1988). In the present case, the claimant and the respondent have not jointly stipulated to dismiss the appeal. Further, it appears that the respondents attorney is not in agreement at this juncture to do such. The respondents state in his letter “It is a respondents position that if there is any appeal left, it will have to be with the Arkansas Court of Appeals after the claimant lodges his record with the Court.” The claimant in this case has not lodged his record with the Court of Appeals and it appears that he only has a few more days to do so based upon the appeal date of November 30, 1998. Under the rules, he has 90 days from the date the appeal was filed to lodge the record with the Court. Therefore, in our opinion we have no jurisdiction to hold the claimant’s appeal with the Court of Appeals in abeyance. Claimant’s only solution at this point is to jointly stipulate with the respondent to dismiss the appeal to the Court of Appeals. [6] The claimant also requests that the matter be remanded to the Administrative Law Judge. We also find that this motion should be denied. Ark. Code Ann. § 11-9-705(c)(1) 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. Mason v.Lauck, 232 Ark. 591, 340 S.W.2d 575 (1980); Seealso, Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). The claimant’s motion states that:
[7] It appears that the claimant was provided a full and fair hearing with the Administrative Law Judge. The claimant represented himself pro se throughout these proceedings. It’s not completely clear exactly what evidence the claimant would present that wasn’t already presented at the hearing. It appears that the claimant just wanted to further his argument. The claimant has not shown that he was diligent in presenting the evidence or that it would change the result of the case. Therefore, we deny the claimant’s motion to remand. [8] IT IS SO ORDERED.I respectfully request that the above referenced case be remanded back to the Administrative Law Judge level in order to present the causal connection between the headaches and chest pain and the original injuries. As the objective medical evidence, I believe, will certainly establish the causal connection. As the respondents and their physicians violated Ark. Code Ann. § 11-9-508(a) (1987) as well as amending to the back only without my knowledge, I feel I am titled to have the case reconsidered.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[9] Commissioner Humphrey concurs.