CLAIM NO. F002706
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JANUARY 12, 2001
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant appeared pro se.
Respondent represented by HONORABLE NEAL L. HART, Attorney at Law, Little Rock, Arkansas.
ORDER
This case comes on review before the Commission on the respondent’s motion for additional time to file a reply brief and to strike the claimant’s additional exhibits. After considering the respondent’s motion, the claimant’s response thereto, and all other matters properly before the Commission, we deny the respondent’s motion for additional time to file a reply brief and grant the respondent’s motion to strike the claimant’s additional exhibits.
The respondent has filed the present motion claiming that the respondent did not receive the claimant’s brief on appeal until November 30, 2000. The respondents state that the envelope bears a postmark of November 25, indicating that it was not mailed until sometime around that date. The Commission finds credible the certificate of service prepared by the claimant which states that the claimant, who is pro se, deposited it into the U.S. mail on November 4, 2000. The burden is upon the respondent to ensure that the brief is filed before they file a reply brief. The claimant’s brief was due on November 10, 2000. The Commission received her brief on November 8, 2000. The respondent’s reply brief was due on November 17, 2000. Therefore, this portion of the respondent’s motion should be denied.
However, the respondent’s motion to strike the claimant’s additional exhibits should be granted. Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982) sets forth the prerequisites 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 evidence submitted by the claimant was not presented diligently. In addition, it is cumulative and it could not change the result. We grant the respondent’s motion to strike.
Accordingly, we find that the respondent’s motion to file a reply brief should be, and hereby is denied. However, the respondent’s motion to strike the claimant’s additional exhibits should be, and hereby is granted.
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
_______________________________ SHELBY W. TURNER, Commissioner