CLAIM NO. E210806
ELGIN CORLEY, EMPLOYEE, CLAIMANT v. WESTERN FOODS, INC., EMPLOYER, RESPONDENT and ST. PAUL FIRE AND MARINE, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
ORDER FILED OCTOBER 13, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SCOTT LAUCK, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE RANDY MURPHY, Attorney at Law, Little Rock, Arkansas.
[1] ORDER
[2] The respondents have filed a motion asking this Commission to consider newly discovered evidence or, in the alternative, to remand the claim to the administrative law judge for a new hearing. This claimant objects to the respondents’ motion. After considering the motion, the claimant’s response, and all other matters properly before the Commission, we find that the respondents’ motion must be granted.
[3] The claimant sustained an admittedly compensable injury to his right knee on July 1, 1992. On July 14, 1995, the administrative law judge filed an opinion and order finding that the claimant’s injury resulted in the aggravation of a preexisting condition in the claimant’s knee and that the claimant is entitled to additional medical treatment as a result of this aggravation. The claimant’s deposition was taken prior to the hearing, and he indicated in his deposition testimony and at the hearing that he had not received any further treatment or medical evaluation which was related to his right knee. Likewise, the claimant testified with regard to his physical limitations at the hearing, and his testimony suggests that his limitations are caused solely by his right knee problems. However, subsequent to the hearing, the claimant’s attorney submitted medical bills for treatment by Dr. William Hefley at Arkansas Orthopedic Associates, and, for their motion, the respondents seek to have medical records related to Dr. Hefley’s treatment admitted into the record. These records indicate that Dr. Hefley primarily treated the claimant for complaints of left knee problems. However, his records also indicate that the claimant’s right knee was also evaluated to some extent. The claimant now contends that these bills were inadvertently sent to the respondents. [4] Ark. Code Ann. §
11-9-705 (c)(1) (1987) 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 (1980); see also, Haygood v. Belcher,
5 Ark. App. 127,
633 S.W.2d 391 (1960). [5] Although no questions at the claimant’s deposition or at the hearing were directed specifically at the claimant’s left knee, an acknowledgement of left knee problems would seem to have been indicated for some questions. Therefore, the evidence clearly is relevant to a determination of the claimant’s credibility. In addition, there is no other evidence related to the treatment by Dr. Hefley, so the evidence is not cumulative. Moreover, the respondents were not aware of the claimant’s left knee injury prior to the receipt of the bills after the hearing. Thus, they could not have been submitted at the hearing with diligent effort. Finally, by affecting the determination of the claimant’s credibility, the bills might change the outcome of this claim. [6] Accordingly, we find that the respondents’ motion to supplement the record must be, and hereby is, granted. The documents attached to the respondents’ motion shall be considered as part of the record on appeal. [7] IT IS SO ORDERED.
JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner
[8] Commissioner Humphrey dissents.