CLAIM NO. F012603
Before the Arkansas Workers’ Compensation Commission
ORDER FILED DECEMBER 13, 2001
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by LAWRENCE FITTING, Attorney at Law, Fort Smith, Arkansas.
Respondent represented by E. DIANE GRAHAM, Attorney at Law, Fort Smith, Arkansas.
ORDER
This case comes on for review before the Commission on the claimant’s motion for Remand/Rehearing to ALJ For Consideration of Additional Evidence. After our consideration of the claimant’s motion, the respondent’s response thereto, and all other matters properly before the Commission, we find that the claimant’s motion should be denied.
The Administrative Law Judge found that the claimant had failed to prove by a preponderance of the evidence that she was entitled to temporary total disability. The claimant sustained a compensable back injury on October 5, 2000, and was treated by three physicians; yet no medical reports were introduced into evidence by the claimant. She relied upon her own testimony that she remained in her healing period and was totally incapacitated from earning wages, and submitted as an exhibit a note in her own handwriting stating that she was unable to work. She admitted that Dr. Holder had released her to work with restrictions, and introduced a letter from the respondent stating that the other two treating physicians had also released her to return to work. The respondent had offered the claimant work within her restrictions, but the claimant did not return to work. The respondent’s exhibits include medical records relating to a previous back injury sustained by the claimant prior to her October 5, 2000, injury.
The claimant’s motion requests a rehearing, alleging that subsequent to the hearing before the Administrative Law Judge, the claimant obtained new counsel, who located in her original attorney’s file a prepared exhibit packet of medical records. This “newly discovered evidence” is attached to the claimant’s motion along with several other medical records that the claimant obtained “pro se.”
Ark. Code Ann. § 11-9-705(c)(1) provides that all evidence must be submitted at the initial hearing on the claim. Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982) sets forth the prerequisites for the Full Commission to admit 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. The Commission has broad discretion with reference to the admission of evidence, and the Supreme Court will not reverse that decision 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).
We find that the claimant failed to meet the fourth Haygood
prerequisite. The claimant had ample opportunity to submit this evidence (the most recent of which is dated March 27, 2001) at the hearing held on June 18, 2001. The claimant’s submission of additional information several months after the hearing and after an opinion has been issued in this case, is untimely. The claimant was aware of the issues to be addressed at the hearing and the fact that she had the burden of proof on the issues. It was only after an adverse opinion was issued that the claimant sought to introduce additional evidence. The claimant has not presented the Commission with any evidence to show why her previous attorney did not present this evidence at the time of the hearing.
Once a decision has been rendered against a party, that party cannot come back and attempt to prove its case on appeal with additional evidence, particularly when the party was not diligent in presenting the evidence. The claimant’s documentary evidence should have been presented seven days prior to the hearing, not almost three months after the Administrative Law Judge’s opinion. The claimant cannot meet all four prerequisites set forth by Haygood, supra, therefore, we find that her motion should be and hereby is denied.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
Commissioner Turner dissents.