DAVIS v. INSTRUMENT CONTROL SERVICE, INC., 1996 AWCC 177

CLAIM NO. E510863

THOMAS DAVIS, EMPLOYEE, CLAIMANT, v. INSTRUMENT CONTROL SERVICE, INC., EMPLOYER, RESPONDENT, and CONTINENTAL INSURANCE COMPANY, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 12, 1996

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

Claimant represented by the HONORABLE MICKEY BUCHANAN, Attorney at Law, Ashdown, Arkansas.

Respondents represented by the HONORABLE SCOTT HARDIN, Attorney at Law, Fort Smith, Arkansas.

[1] ORDER
[2] This matter comes before the Full Commission on the respondents’ motion to strike documentary evidence attached to the claimant’s reply brief, to strike additional documentary evidence which the claimant seeks to obtain and place into the record at a later date, and to strike the conclusion section of the claimant’s reply brief. After giving due consideration to the respondents’ motion, and all other matters properly before the Commission, we find that the respondents’ motion to strike additional evidence must be granted. However, we find that the respondents’ motion to strike the conclusion section of the claimant’s reply brief must be denied.

[3] A hearing was held on February 29, 1996, and the administrative law judge filed an opinion and order on April 3, 1996, finding that the claimant sustained a compensable shoulder injury. The respondents have appealed the administrative law judge’s decision and, the claimant currently seeks to introduce a letter signed by Dr. Jeffrey DeHaan, an orthopedic specialist who apparently participated in surgery on the claimant after the hearing in this matter. Dr. DeHaan’s letter expresses an opinion as to the cause and severity of the claimant’s shoulder injury based on Dr. DeHaan’s surgical findings. The claimant also seeks to obtain and submit into evidence an additional opinion to be rendered by Dr. DeHaan once Dr. DeHaan has reviewed the record of medical treatment received by the claimant from other physicians.

[4] Ark. Code Ann. § 11-9-705 (c)(1) (Repl. 1996) provides that all evidence must be submitted at the initial hearing on the claim. In order to submit new evidence, the claimant must show that the 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, 233 Ark. 591, 340 S.W.2d 575
(1980); see also, Johnston v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992); Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).

[5] In the present claim, we find that the claimant was not diligent in obtaining opinions from Dr. DeHaan. There is nothing in the record indicating that anything prevented the claimant from providing Dr. DeHaan a record of medical treatment provided by other physicians, and obtaining and presenting an opinion from Dr. DeHaan at the hearing in this matter based on the claimant’s prior treatment. Similarly, although the claimant’s brief alleges that he was financially unable to obtain the surgery performed by Dr. DeHaan at the time of the hearing, we note that Dr. DeHaan’s opinion-letter was drafted only 10 weeks after the hearing in this matter. Neither the claimant’s brief or Dr. DeHaan’s letter indicate when the surgery actually occurred. In addition, the claimant has failed to offer an explanation as to why he was financially unable to obtain the surgery prior to the hearing but then became financially able to do so within the 10 week period after surgery.

[6] We also find that the proffered opinions are cumulative. In this regard, the opinion which the claimant seeks to obtain and place in the record based on medical treatment provided by physicians other than Dr. DeHaan is based on medical records which are already a part of the evidence in this case. In addition, Dr. Richard Hilborn, the claimant’s treating orthopedic specialist, prior to the hearing rendered an opinion on the causation of the claimant injury at the request of the claimant’s attorney on October 5, 1995.

[7] Finally, we note that the administrative law judge has found that the claimant’s injury is compensable. In addition, Dr. DeHaan’s letter attached to the claimant’s reply brief is very cryptic and does not adequately explain the basis for the opinion therein. Therefore, we cannot say that the proffered evidence is likely to change the result of the case.

[8] However, we note that the respondents also seek to strike the conclusion of the claimant’s reply brief which, according to the respondents, mis-characterizes the stipulations of the parties. However, we find no basis to strike the conclusion of the claimant’s reply brief simply because it may mis-characterize the stipulations entered into by the parties.

[9] Therefore, for the reasons discussed herein, we find that the respondents’ motion to strike Dr. DeHaan’s letter attached to the claimant’s reply brief must be, and hereby is, granted. In addition, we find that the respondents’ motion to exclude any forthcoming opinion rendered by Dr. DeHaan, which according to the claimant will be based on medical treatment provided by other physicians, must also be granted. However, we find that the respondents’ motion to strike that portion of the claimant’s reply brief which allegedly mis-characterizes the stipulations of the parties must be denied.

[10] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[11] Commissioner Humphrey dissents.