CLAIM NO. E213303
CHARLES FOSTER, EMPLOYEE, CLAIMANT v. FORT SMITH LUMBER CO., EMPLOYER, RESPONDENT and INDIANA LUMBERMEN’S INSURANCE CO., CARRIER, RESPONDENT
Before the Arkansas Workers’ Compensation Commission
ORDER FILED MARCH 13, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBERT CLOAR, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
[1] ORDER
[2] This matter comes before the Commission on claimant’s motion to supplement the record. This case was originally scheduled for submission on our January 8, 1997, docket. Claimant requested an extension of time within which to file his brief. There were no objections and the extension was granted. On January 17, 1997, claimant filed a motion to supplement the record and motion for extension of time to file brief. Respondent did not object to the motion for extension of time to file brief and such was granted. After reviewing claimant’s motion, respondent’s response thereto and all other matters properly before the Commission, we find that claimant’s motion to supplement the record must be denied.
[3] A hearing to determine claimant’s entitlement to additional indemnity benefits, including temporary total disability benefits, permanent impairment benefits, wage loss benefits, and related medical expenses was held on July 29, 1996. On August 27, 1996, the Administrative Law Judge rendered an Opinion denying claimant additional benefits. Claimant filed a notice of appeal with the Commission on September 3, 1996.
[4] It is noted that claimant’s injury occurred on August 3, 1992. Claimant received temporary total disability benefits and medical benefits for his compensable injury. Claimant last worked for respondent employer on August 3, 1992, and he last received indemnity benefits on February 5, 1993. Claimant requested a hearing on entitlement to additional benefits which was scheduled for November of 1993. Claimant did not proceed with the hearing but rather withdrew his request for the hearing for additional time to prepare. Claimant did not request another hearing until almost two and a half years later.
[5] At the hearing which was eventually held on July 29, 1996, claimant presented his case which included, but was not limited to an MRI report from an MRI conducted on September 9, 1992, approximately one month after claimant’s compensable injury. After receiving an unfavorable opinion denying claimant’s entitlement to permanent partial disability benefits, claimant underwent a second MRI on October 17, 1996. By motion filed January 17, 1997, claimant seeks to introduce and rely upon the October 17, 1996, MRI results.
[6] Claimant had ample opportunity to compile all relevant evidence necessary to prove his case prior to the July 1996 hearing. There has been no showing that the “new” evidence claimant now wishes to introduce could not have been obtained prior to the July hearing. Claimant has simply stated that such evidence is necessary to meet his burden of proof by a preponderance of the evidence; however, there is no support for this statement.
[7] As we have previously stated, “a claimant is not entitled to `two bites at the apple.'” See Lynn Sheridan v.Kallsnick, F.C. Order filed May 22, 1996, Claim No.
E318630. There has been no showing that claimant could not have obtained the second MRI prior to his hearing. If claimant did not believe he had sufficient evidence to prove his case, it was not necessary for claimant to go forward with the July hearing. It is interesting to note that it was not until after claimant received an unfavorable opinion that he decided to obtain additional evidence. Claimant’s failure to obtain such additional evidence prior to the hearing shows a lack of diligence on claimant’s part. Moreover, claimant has not shown that this new evidence will alter the results of the Administrative Law Judge’s decision. As noted above, claimant has not worked for respondent since 1993. Following his injury, claimant’s MRI revealed no disc herniations. It was not until four years after his compensable injury, and three years after ceasing employment small central focal disc herniation.”
[8] The requirements to introduce newly discovered evidence have not been met. 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. Once a decision has been rendered against a party, that party cannot come back and attempt to prove his case on appeal with additional evidence. Therefore, we find that claimant’s motion to submit additional evidence must be denied.
[9] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[10] Commissioner Humphrey dissents.
