CLAIM NO. E802837
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 18, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by MICHAEL A. FRIEDMAN, Attorney at Law, Texarkana, Texas.
Respondents represented by FRANK B. NEWELL, Attorney at Law, Little Rock, Arkansas.
[1] ORDER[2] This case comes on for review before the Commission on respondent’s Motion for Remand to the Administrative Law Judge for consideration of additional relevant evidence. [3] After our consideration of respondent’s motion, claimant’s response thereto and all other matters properly before the Commission, we find that respondent’s Motion should be denied. [4] A.C.A. § 11-9-705(c)(1)(A) (Repl. 1996) provides that all evidence shall be presented by each party at the initial hearing and that additional evidence shall be allowed only at the discretion of the Commission. In the exercise of this discretion we must consider whether respondent has proven that the additional evidence is relevant; is not cumulative; would change the results; and that they exercised diligence in obtaining the evidence. Masonv. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). [5] Respondent requests that we direct the Administrative Law Judge to admit and consider additional evidence. Specifically respondent submits correspondence from a doctor addressing the issue of causation. The correspondence submitted was not generated until two months after the date of the hearing in this claim. Respondent also submits copies of claimant’s medical records which predate her injury. [6] Because respondent failed to exercise reasonable diligence in securing claimant’s medical records respondent’s Motion must be denied as relates to those medical records. Likewise because the record already contains references to the opinions of six doctors regarding claimant’s condition the addition of a seventh opinion would simply be cumulative, therefore respondent’s Motion must be denied as relates to this correspondence. Respondent has also failed to demonstrate that the additional evidence would change the results which requires that this Motion be denied. [7] Accordingly, we find that claimant’s Motion for Remand to the Administrative Law Judge for consideration of additional relevant evidence should be, and hereby is denied. [8] IT IS SO ORDERED. [9] _________________________________
ELDON F. COFFMAN, Chairman _________________________________ PAT WEST HUMPHREY, Commissioner [10] Commissioner Wilson dissents. [11] DISSENTING OPINION
[12] I respectfully dissent from the majority’s opinion. Respondent moves that two medical reports generated by Dr. Steven Cathey dated February 1, 1999 and March 18, 1999, be admitted into evidence and considered by the Administrative Law Judge. Admittedly, these reports were generated after the hearing on this claim which resulted in an Opinion by the Administrative Law Judge finding that claimant had proven a causal connection between her alleged fall on October 2, 1997, and her medical condition of pseudomeningocele and awarding temporary total disability benefits. Subsequent to the hearing, but prior to the issuance of the Administrative Law Judge’s Opinion, claimant’s treating physician, Dr. Thomas Salyer, referred claimant to Dr. Steven Cathey for evaluation and treatment. In his report dated February 1, 1999, Dr. Cathey unequivocally stated that claimant’s pseudomeningocele is not related to claimant’s work-related fall. Dr. Cathey specifically stated:
[13] After receiving Dr. Cathey’s February 1, 1999 report, respondent made further inquiry of Dr. Cathey with regard to his opinion. This inquiry resulted in Dr. Cathey’s March 18, 1999 report in which he further set out his opinion on causation. [14] Although Dr. Cathey’s opinion on causation may add to the already numerous opinions on causation in this claim, I do not find it to be cumulative or duplicative of any prior evidence. Moreover, Dr. Cathey’s opinion, the opinion of a highly respected neurosurgeon, may well change the results of this claim. Finally, the Motion reflects that claimant was sent to Dr. Cathey upon a referral from her treating physician, and not at the behest of respondent in an effort to seek additional causation opinions. Upon receipt of Dr. Cathey’s opinion, I find that respondent acted diligently in presenting this evidence to the Commission. Accordingly, I find that the new evidence resulting from claimant’s referral to Dr. Cathey is not only relevant to this claim, it is not cumulative since it is different from all prior evidence, it could be possibly change the results of this case, and respondent diligently presented this evidence to the Commission. Therefore, I find that the test for admitting additional evidence has been met and Respondent’s Motion should be granted. Therefore, I respectfully dissent from the majority opinion. [15] ______________________________ MIKE WILSON, Commissioner. . . it is impossible for pseudomeningocele to develop in response to the type of injury described by Ms. Coffman.