CLAIM NO. E018690
PEGGY BOLEN, EMPLOYEE, CLAIMANT v. INTERNATIONAL PAPER COMPANY, SELF-INSURED EMPLOYER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 8, 1996
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant appears pro se on appeal.
Respondents represented by the HONORABLE MICHAEL J. DENNIS, Attorney at Law, Pine Bluff, Arkansas.
[1] ORDER
[2] This matter comes before the Full Commission on the respondent’s Motion to Strike an exhibit from the claimant’s brief. The claimant has objected to the respondent’s motion. After giving due consideration to the respondent’s motion, the claimant’s response thereto, and all other matters properly before the Full Commission, we find that the respondent’s motion must be granted.
[3] The respondent has appealed an opinion and order filed by the administrative law judge on August 29, 1995, which required the respondent to pay the cost of additional surgery recommended by Dr. James Adametz. In its brief on appeal, the respondent contends that the claimant has failed to prove by a preponderance of the evidence that the surgery recommended by Dr. Adametz is reasonably necessary medical treatment for the claimant’s compensable injury. In her response brief, claimant contends that the proposed surgery is reasonably necessary, and has attached a written statement by Dr. Adametz which reiterates his medical opinion regarding the proposed surgery.
[4] The respondent filed a reply brief and a motion to strike the post-hearing statement by Dr. Adametz attached to the claimant’s response brief.
[5] Ark. Code Ann. §
11-9-705 (c)(1) (1987) 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 he 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).
[6] In the present claim, we find that the respondent’s motion to strike must be granted. A hearing in this case was held on August 16, 1995. Dr. Adametz’s medical records were submitted into evidence at the hearing. Subsequent to the hearing, the claimant contacted Dr. Adametz and obtained the written statement by Dr. Adametz attached to her brief for “clarification” purposes. Clearly, Dr. Adametz’s medical opinions contained in the statement are based on the claimant’s medical condition as it existed prior to the hearing, and the claimant has made no showing as to why she could not have obtained the written statement before the hearing in this matter. We therefore find that the claimant was not diligent in presenting the evidence to the Full Commission. Accordingly, the respondent’s Motion to Strike Dr. Adametz’s written statement of October 10, 1995, attached to the claimant’s brief on appeal to the Full Commission is hereby granted.
[7] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner
[8] Commissioner Humphrey concurs.
