CLAIM NO. D609422
Before the Arkansas Workers’ Compensation Commission
ORDER FILED JANUARY 31, 1995
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by KEITH VAUGHAN, Attorney at Law, Texarkana, Texas.
Respondent represented by RALPH R. WILSON, Attorney at Law, Little Rock, Arkansas.
[1] ORDER
[2] This matter comes on for review from the remand of the Court of Appeals dated January 4, 1995. The Court of Appeals has remanded this matter to the Full Commission stating:
[3] On or about August 19, 1994, appellant filed a notice of appeal to the Court of Appeals appealing the July 20, 1994 decision of the Full Commission. On December 15, 1994, appellant moved to supplement the record on appeal. The motion indicated that the transcript which was filed on November 9, 1994, was not complete and that a January 27, 1993 letter to the Administrative Law Judge, as well as, a letter and medical reports dated July 29, 1992 should be added to the record. In response to this motion, the Court of Appeals remanded the matter to the Full Commission to “settle the record.” [4] After considering claimant’s motion, respondent’s lack of response thereto, and all matters properly before the Commission, we deny claimant’s motion to include the January 27, 1993 letter to the Administrative Law Judge from claimant’s counsel and the July 29, 1992 letter and medical records in the record on appeal. [5] Our opinion and order filed on July 20, 1994, does not indicate that the Full Commission considered the January 27, 1993 letter to the Administrative Law Judge or the July 29, 1992 letter and medical records. Apparently, the Administrative Law Judge had an informal motion before him to include the July 29, 1992 letter and medical records. Seemingly, the Administrative Law Judge did not enter a formal opinion concerning the inclusion of the proffered evidence. Also, appellant mentioned the additional evidence in his brief to the Full Commission. However, there was not a formal motion to supplement the record filed with the Full Commission. Therefore, we did not include this evidence in the record when making our determination. [6] Presently, we find that the additional evidence should not be made a part of the record at the Court of Appeals level. The fact finders are expected to play by the basic rules of fair play. Brewer v. Tyson Foods, Inc.,10 Ark. App. 88, 661 S.W.2d 423 (1983). In this case, respondent has not had the opportunity to cross-examine the relevant documents. To include the evidence on appeal to the Court of Appeals would violate the basic rules of fair play. Therefore, as stated, we deny claimant’s motion to include the additional evidence. The record as it is presently before the Court of Appeals is complete and should not include the January 27, 1993 letter to the Administrative Law Judge or the July 29, 1992 letter and medical records. [7] IT IS SO ORDERED.Appellant’s motion to supplement the record and for brief time. Remanded to Workers’ Compensation Commission to settle the record within thirty days. (February 3, 1995) Brief due April 4, 1995.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[8] Commissioner Humphrey dissents.[9] DISSENTING OPINION
[10] I must respectfully dissent from the order of the majority refusing to include in the record certain evidence, to which respondent has not objected. Apparently, claimant will have to eventually seek a modification of any award of permanent disability benefits pursuant to Ark. Code Ann. § 11-9-713.