BELL v. CITY OF PINE BLUFF, 1994 AWCC 147

CLAIM NO. E006840

HENRY BELL, EMPLOYEE, CLAIMANT v. CITY OF PINE BLUFF, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED OCTOBER 31, 1994

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE SILAS H. BREWER, Attorney at Law, Little Rock, Arkansas.

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 claimant’s motion to remand for the purpose of taking additional evidence. The respondents have objected to the claimant’s motion. After giving due consideration to the claimant’s motion, the response of the respondents, and all other matters properly before the Commission, we find that the claimant’s motion must be denied.

[3] 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 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 he was diligent in presenting the evidence to the Commission. Mason v. Lauck, 233 Ark. 591, 340 S.W.2d 575
(1980); see also, Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).

[4] In the present claim, the administrative law judge filed an opinion and order on May 31, 1994, finding, interalia, that the claimant sustained a seven and one-half percent (7 1/2%) permanent physical impairment as a result of an injury he sustained on February 22, 1990. Now, the claimant seeks consideration of evidence showing that Dr. Jim Moore, has opined that the claimant sustained an additional 5-10% permanent physical impairment as a result of findings of nerve involvement at L5-S1, on the right. Significantly, Dr. Moore has treated the claimant for back injuries since 1983, and he ordered extensive diagnostic procedures to evaluate the claimant’s condition prior to the hearing. Furthermore, the parties took Dr. Moore’s deposition prior to the hearing. Consequently, to the extent that Dr. Moore’s more recent opinion relates to the issues presented at the October 13, 1993, hearing, we find that the claimant was not diligent in presenting that evidence. Furthermore, the respondents state in their response to the claimant’s motion that they are taking the position that Dr. Moore’s right-sided findings are not related to the compensable injury. Therefore, it appears that the claimant is making a claim for a new injury rather than attempting to submit additional evidence, and the claimant can submit a claim for that injury and pursue the claim in accord with the appropriate procedure.

[5] Accordingly, for the reasons discussed herein, we find that the claimant’s motion must be, and hereby is, denied.

[6] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[7] Commissioner Humphrey dissents.