CLAIM NO. E705464
Before the Arkansas Workers’ Compensation Commission
ORDER FILED MARCH 13, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by J. TIMOTHY SMITH, Attorney at Law, Fayetteville, Arkansas.
Respondent represented by JOANNA BOYLES TAYLOR, Attorney at Law, Huntsville, Arkansas.
[1] ORDER[2] This case comes on review before the Commission on respondent’s motion for rehearing and to set aside opinion and order. After consideration of the respondent’s motion, the claimant’s response thereto, we find that the respondent’s motion should be granted. [3] The respondent seeks to have this matter remanded to the Administrative Law Judge for a rehearing based upon an affidavit that the respondent received from Ms. Shoemaker. The Administrative Law Judge found that the claimant had proved by a preponderance of the evidence that he sustained a compensable injury. The respondent contends that Ms. Shoemaker’s affidavit is proof the claimant’s injury was occasioned by the use of illegal drugs. The claimant has objected to the respondent’s motion. In his response, the claimant states that this evidence was readily available to the respondent prior to the hearing on October 29, 1997. [4] Ark. Code Ann. § 11-9-705(c)(1) (Repl. 1997) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, the respondent must show that the new evidence is relevant; that it is not cumulative; that it would change the results of the case; and that the respondent was diligent in presenting the evidence. Mason v. Lauck, 232 Ark. 591, 340 S.W.2d 575 (1980); See also, Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). [5] The information contained in the affidavit of Ms. Shoemaker did not become available to the respondent until December 17, 1997. It is clear that the information contained in the affidavit is relevant. It is proof that the claimant could have smoked marijuana within 24 hours of the accident. This evidence is not cumulative but it could change the results. Further, the respondent was diligent in presenting the evidence. As soon as the respondent became aware of the knowledge Ms. Shoemaker had, an affidavit was filed with the Commission. [6] Therefore, we find that the respondent has satisfied all the requirements for introducing new evidence as set forth in Haygoodv. Belcher. Accordingly, we grant the respondent’s motion for rehearing and to set aside opinion and award. The November 20, 1997 opinion of the Administrative Law Judge is hereby set aside and this matter is remanded to the Administrative Law Judge for the purpose of a new hearing. [7] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[8] Commissioner Humphrey dissents. [9] DISSENTING OPINION[10] In my opinion, it is improper and a clear abuse of discretion to grant respondent’s motion for rehearing and to set aside the Administrative Law Judge’s opinion based on supposedly
newly discovered evidence. [11] Initially, I would point out that just because respondent did not receive this information until after the hearing is insufficient to support a finding (and it cannot be seriously argued) that respondent was diligent in investigating
this claim. Respondent did not act diligently and it is of no consequence that respondent may have been diligent in presenting the evidence to the Commission. Respondent must be diligent inseeking or discovering the information in the first place. [12] Further, it is incredible that respondent is just now making an argument concerning the possible affect any alleged drug usage may have had on this injury. Respondent’s argument before the Administrative Law Judge was that it did not have sufficient employees to require it to carry workers’ compensation insurance. Respondent never argued that drugs or intoxication came into play. Thus, the Administrative Law Judge never mentioned drugs or intoxication in his opinion because no such allegation was ever made by respondent. [13] Probably more interesting is the timing of, and circumstances surrounding, this particular allegation. Marion Shoemaker, the affiant herein, has a most curious relationship with this employer. She is not only claimant’s co-worker, but is also the wife of claimant’s supervisor. She even transported claimant to the hospital following the compensable injury. Further, she did not come forward with this supposedly shocking and highly relevant allegation until after the Administrative Law Judge found that respondent had sufficient employees to require workers’ compensation insurance and that claimant was entitled to compensation benefits. This is a most suspicious situation, especially considering the fact that the employer is uninsured. [14] Additionally, respondent argues that Ms. Shoemaker’s affidavit rebuts the presumption that claimant’s injury was not occasioned by the use of illegal drugs. However, I would respectfully point out that pursuant to Act 796 of 1993, there is no such presumption any more. Therefore, this argument is without merit. [15] Next, respondent argues that claimant somehow intentionally injured himself and is thus not entitled to compensation. This is likewise an allegation made for the first time on appeal. It seems to me that sticking one’s hand in a running table saw and severely injuring two fingers is an extreme way to intentionally injure yourself in order to fraudulently obtain workers’ compensation benefits. In addition, respondent argues that claimant’s own negligence contributed to this injury. However, I would again point out that this argument is irrelevant. The negligence of a claimant will not prevent a claim from being compensable. This is one of the most important principles behind enacting workers’ compensation laws. [16] For the foregoing reasons, I would deny respondent’s motion. The majority has erroneously given respondent “a second bite at the apple.” If the Administrative Law Judge once again finds that claimant is entitled to benefits, what will be respondent’s next and newest allegation? It would be quite interesting to find out and then see how this Commission reacts. [17] PAT WEST HUMPHREY, Commissioner