COUNCIL v. HIGGINS, 1994 AWCC 30

CLAIM NO. E313837

LEWARD R. COUNCIL, EMPLOYEE, CLAIMANT v. DEWAYNE HIGGINS, UNINSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED JUNE 9, 1994

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

Claimant appeared pro se.

Respondent represented by FRED CADDELL, Attorney at Law, Fort Smith, Arkansas.

[1] ORDER
[2] This case comes on for review before the Commission on claimant’s motion to submit additional evidence.

[3] After our consideration of claimant’s motion, respondent’s objection thereto and all other matters properly before the Commission, we find that claimant’s motion should be denied. [4] Ark. Code Ann. § 11-9-705 (c)(1) (Supp. 1993) 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 claimant has proven that the additional evidence is relevant; that it is not cumulative; that it would change the results; and that he exercise diligence in obtaining the evidence. Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575
(1960); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391
(1982). [5] In the present case, claimant failed to act diligently in obtaining and presenting this evidence to the Commission. Claimant could have, and should have, presented this evidence at the hearing before the Administrative Law Judge. [6] Accordingly, we find that claimant’s motion to submit additional evidence should be, and hereby is, denied. [7] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALLYN C. TATUM, Commissioner

[8] Commissioner Humphrey dissents.