CLAIM NO. E417735
Before the Arkansas Workers’ Compensation Commission
ORDER FILED FEBRUARY 26, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented PRO SE.
Respondent represented by LEE J. MULDROW, Attorney at Law, Little Rock, Arkansas.
[1] ORDER[2] This matter is before the Commission on the claimant’s motion to submit new medical evidence. The respondent has filed an objection to the claimant’s motion. After reviewing claimant’s motion, the respondent’s response there, and all other matters properly before the Full Commission, we find that the claimant’s motion should be denied. [3] A hearing to determine the claimant’s entitlement to additional medical and indemnity benefits was held on September 5, 1997. On November 24, 1997, the Administrative Law Judge rendered an opinion denying the claimant additional benefits. The claimant filed a Notice of Appeal with the Commission on December 4, 1997. [4] The claimant sustained an injury on November 4, 1994 primarily to her left leg. At the time of the injury, the claimant was earning $1,100 a month, which was sufficient to entitle her to indemnity benefits at the rate of $169.00 a week for temporary total disability benefits. The claimant was undergoing active medical treatment at UAMS and her salary was continued by her employer. Her salary was discontinued in March of 1995. [5] The claimant underwent various diagnostic tests which included a MRI, CT Scan, bone scan and a cardiac work up. The claimant received medical treatment at UAMS, at the Arkansas Department of Health by Dr. Glen Pait, Dr. Johnny Smelz and Dr. Blankenship. In addition, Dr. Jim Moore performed an independent medical evaluation of the claimant. The respondent contended that the claimant had reached maximum medical improvement on March 27, 1995. [6] The claimant proceeded with the hearing Pro se. She had hired several attorneys but elected to proceed with her claim for additional benefits Pro se. The only medical evidence that the claimant introduced at the hearing was some pictures of her left leg, with which she contends she is continuously having problems. By a motion filed January 29, 1998, the claimant seeks to introduce and rely upon additional medical information. [7] The claimant had ample opportunity to compile all relevant evidence necessary to prove her case prior to the September 4, 1997 hearing. There has been no showing that the “new” evidence the claimant now wishes to introduce could not have been obtained prior to the September hearing. We note that some of the medical records and telephone message logs that the claimant seeks to introduce occurred after the hearing. Apparently, claimant had an MRI and a motor nerve study done after the hearing. There are some notes in the medical records dated 9/12/97, wherein it states that, “She had her hearing recently and the Judge approved her seeing a specialist. Apparently although we don’t have any written documentation of this.” We cannot find any discussion in the transcript from the hearing that the Judge directed the claimant to see a specialist. [8] A claimant is not entitled to two bites at the apple. SeeLyn Sheridan v. Kallsnick, FC Opinion filed May 22, 1996 (E318630). If the claimant did not believe she had sufficient evidence to prove her case, it was not necessary for the claimant to go forward with the September hearing. Claimant’s failure to obtain additional evidence prior to the hearing shows a lack of diligence on the claimant’s part. Moreover, the claimant has not shown that this new evidence will alter the results of the Administrative Law Judge’s decision. [9] The requirements to introduce newly discovered evidence have not been meet. 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. The claimant has failed to satisfy these requirements. Once a decision has been rendered against a party, that party cannot come back and attempt to prove her case on appeal with additional evidence. Therefore, we find that the claimant’s motion should be denied. [10] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[11] Commissioner Humphrey dissents.