BUTLER v. ALLTRISTA CORPORATION, 1997 AWCC 337

CLAIM NOS. E620634 E620635

TONA BUTLER, EMPLOYEE, CLAIMANT v. ALLTRISTA CORPORATION, EMPLOYER, RESPONDENT TRAVELERS INSURANCE COMPANY, and INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 20, 1997

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

Claimant represented by R. GUNNER DeLAY, Attorney at Law, Fort Smith, Arkansas.

Respondents represented by PHILLIP CUFFMAN, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Vacated and remanded.

[1] OPINION AND ORDER
[2] Claimant appeals a March 19, 1997 opinion of the Administrative Law Judge finding that claimant failed to prove by a preponderance of the evidence that she sustained a compensable injury.

[3] From our review of the record, it appears that the Administrative Law Judge may not have given claimant an adequate opportunity to introduce any documentary evidence at the hearing. The Administrative Law Judge’s opinion was apparently based on claimant’s failure to introduce documentary evidence. In her brief on appeal, claimant asks the Commission to remand this case to the Administrative Law Judge for the submission of additional evidence.

[4] Accordingly, we vacate the March 19, 1997 opinion of the Administrative Law Judge and remand this matter to the Administrative Law Judge to settle the record.

[5] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner

[6] Commissioner Wilson dissents.

[7] DISSENTING OPINION
[8] I respectfully dissent from the majority’s opinion. The record is clear that the medical evidence claimant now desires to be submitted into evidence was available prior to the date of the hearing. Ark. Code Ann. § 11-9-705(c)(1) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, the moving party 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, 232 Ark. 891, 340 S.W.2d 575 (1990). See also, Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). Although claimant’s attorney listed several relevant medical records on his pre-hearing questionnaire as evidence to be introduced at the hearing, claimant’s attorney did not take the affirmative steps of insuring that these medical records were in fact introduced at the hearing. A review of the transcript reveals that the Administrative Law Judge introduced the pre-hearing order as Commission’s Exhibit No. 1 and a medical record submitted by respondent as Respondent’s Exhibit No. 1. At no time did claimant’s attorney present the medical records to the Administrative Law Judge on the record to be introduced into evidence. When the medical records are available prior to the hearing, it is the burden of the attorneys to ensure that the medical records are, in fact, introduced at the hearing. I cannot find that the requirement set forth above with regard to the provisions for introducing additional evidence have been met. Therefore, I respectfully dissent from the majority opinion.

[9] MIKE WILSON, Commissioner