DIXON v. BAXTER COUNTY REGIONAL HOSPITAL, 2005 AWCC 258

CLAIM NO. E112173

ARLENE DIXON, EMPLOYEE CLAIMANT v. BAXTER COUNTY REGIONAL HOSPITAL, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER RESPONDENT

Before the Arkansas Workers’ Compensation Commission
ORDER FILED DECEMBER 30, 2005

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

Claimant represented by Honorable Frederick Spencer, Attorney at Law, Mountain Home, Arkansas.

Respondent represented by Honorable Walter A. Murray, Attorney at Law, Little Rock, Arkansas.

ORDER
Presently before the Commission is respondent’s Motion for Oral Arguments and/or Permission to File Brief. After consideration of respondent’s motion and all other matters properly before the Commission we find that respondent’s motion must be denied in part and granted in part.

This claim is before the Commission on remand from the Court of Appeals to render findings of fact with regard to whether claimant’s claim is one for additional benefits pursuant to A.C.A. § 11-9-702, or whether the claim is one for a modification of a previous award pursuant to A.C.A. § 11-9-713, or both. We find that filing briefs on this issue to the Full Commission will be beneficial to our determination. At this time, we do not perceive any benefit in oral arguments. If after reviewing the parties’ briefs we are of a different opinion, we will order oral arguments at the time.

Accordingly, we find that respondent’s motion is hereby granted in part and denied in part. The Clerk of the Commission is hereby ordered to establish a briefing schedule for this appeal.

IT IS SO ORDERED.

___________________________________ OLAN W. REEVES, Chairman
___________________________________ KAREN H. McKINNEY, Commissioner

Commissioner Turner concurs, in part, and dissents, in part.

CONCURRING AND DISSENTING OPINION SHELBY W. TURNER, Commissioner.

The Majority grants the Claimant’s request to file an additional brief, but denies their Motion for Oral Arguments. While I agree with the recommendation to deny the Motion for Oral Arguments, in my opinion, the Respondent’s Motion for Permission to File a Brief should be denied.

On January 21, 2003, the Respondent filed a Brief to the Full Commission. In that brief the Respondent argued that the Commission had erred by using the terms “additional benefits” and “request to modify the previous award” interchangeably and therefore arbitrarily. The Respondent went on to lay out a detailed argument regarding which type of claim the claimant had filed and whether the claimant should be allowed benefits pursuant to Ark. Code. Ann. § 11-9-702 or § 11-9-713. There is no indication anywhere in the file that this brief was not considered by the Commission. Accordingly, I find that to now allow the Respondent to submit an additional brief would give them a second chance to present their case before the Commission. The Respondent did not outline any reason in their motion to demonstrate why they would need a second chance to present their case or that their argument has changed in any way. Accordingly, I would have denied both motions.

______________________________ SHELBY W. TURNER, Commissioner